
Class JS VT/ 
Book 






GUIDE TO OFFICERS OF TOWNS; 



CONTAINING THE 



STATUTES RELATING TO THEIR OFFICIAL DUTIES, 



Sottas, JBimticrns anb £egal Wumon^ 



ADAPTED TO THE 



REVISED STATUTES OF NEW-HAMPSHIRE. 



BY CHARLES J? FOX 



J; 



CONCORD: 

PUBLISHED BY G. PARKER LYON. 

1843. 






Entered according to an act of Congress, in the year 1842, 

BT Q. PARKER LYON, 

In the Clerk's office of the District Court of New-Hampshire. 






ASA McFARLAND, PRINTER. 



I 









PREFACE. 



The changes which have taken place within the last 
twelve years in the statute laws of the state have been very 
great, but perhaps in no respect have these changes been 
greater than in the laws concerning the powers and duties 
of town officers. These powers and duties are extensive 
and complicated, perplexing to the man of business, and 
not always easily understood by the professed lawyer. The 
" Town Officer" of chief justice Richardson was a conve- 
nient and useful manual, and has rendered essential service 
to the state, by means of forms contained in it, ensuring 
correctness and preventing litigation. But the changes of 
the laws have now rendered a large proportion of these 
forms incorrect, and a new manual has become necessary. 

The compiler has adopted the plan of dividing the book 
into titles, chapters and sections, and of placing an abstract 
of the contents of each chapter at its head. A great vari- 
ety of forms have been prepared, sufficient probably for all 
practical purposes. To have provided a form adapted to 
every case would have swelled the book to no good purpose. 
It was thought that references to those cases in which ques- 
tions of law relating to the subjects contained in this book 
had been decided might be useful, and numerous extracts 
have been made accordingly, not only from the New-Hamp- 
shire Reports, but from those of Massachusetts, Maine and 
Vermont, when applicable. 

The Revised Statutes are referred to by chapters and 
sections, thus : R. S., ch. , sec. . The word Ibid, re- 
fers to the next reference preceding. If the reference is to 



Vlll PREFACE. 

a chapter or section, and no more, it means that chapter of 
this book, or that section of the same chapter. The New- 
Hampshire Reports are referred to by the volume and page ; 
as, for instance, 1 N. H. R., 38 — meaning volume 1, page 
38. Mass. R., Pick. R., and Metcalf R. refer to the 
Massachusetts, Pickering's and Metcalf 's Reports; these 
are all decisions by courts in Massachusetts. Maine R., 
Greenleaf R., Fairfield it. and Shepley R., refer to Maine, 
Greenleaf's, Fairfield's and Shepley's Reports; these are 
all decisions by courts in Maine. Vermont R., refers to 
the Vermont Reports. 

The work is adapted to the Revised Statutes, and con- 
tains all the more important provisions relating to the du- 
ties of town officers. It is not intended, however, to super- 
sede the necessity of the Revised Statutes for town officers, 
for every such officer should own a copy of the laws under 
which he lives and acts. As they have not yet been pub- 
lished, or any decisions under them been made, the com- 
piler may in some instances have given them a wrong con- 
struction, or some of the references may not now apply. 
He has endeavored, however, to avoid this, and to err, if at 
all, on the safe side, by advising, in cases of doubt, the offi- 
cer to take that course which seemed safest ; to require him 
to do more than was necessary, rather than to do less. 

The object of the compiler has been merely to furnish a 
guide to point out to the inexperienced officer his general 
pathway. He must not expect that it will explain every dif- 
ficulty and answer every question. General rules only can 
be given, and their application must be left to the good 
sense of the officer. If the work is accurate, clear and 
methodical, it will fully repay the care and labor of 

The Compiler. 

Nashville, March 13, 1843. 



ANALYSIS OF CONTENTS, 



TITLE I. 

OF TOWNS AND TOWN OFFICERS. 

PAGE. 

Chapter 1. Of the powers and duties of towns. 13 

Chapter 2. Of warning town meetings. 17 
Chapter 3. Of the government and powers of town 

meetings. 25 
Chapter 4. Of the choice and duties of town officers, 

and of filling vacancies. 27 

5. Of the oaths of town officers. 34 

6. Of town lines. 37 

7. Of proprietary records. 40 
Chapter 8. Of actions by and against towns. 42 

TITLE II. 



Chapter 
Chapter 
Chapter 



OF THE ELECTION OF STATE AND COUNTY 
OFFICERS. 

Chapter 9. Of the rights and qualifications of 

voters. 45 

Chapter 10. Of the manner of conducting elections. 49 

Chapter 11. Of the election of governor, coun- 
sellors and senators. 55 

Chapter 12. Of the election of representatives in 

congress. 57 

Chapter 13. Of the election of electors of president 

and vice-president. 59 

Chapter 14. Of the election of county officers. 60 

Chapter 1 5. Of the election of representatives to 

the general court. 63 

Chapter 16. General provisions concerning elections. 69 



ANALYSIS OF CONTENTS. 



TITLE III. 

OF THE ASSESSMENT AND COLLECTION OF 
TAXES. 

PAGE. 

Of persons and property liable to tax- 
ation. 73 
Where and to whom persons and prop- 
erty shall be taxed. 76 
Of the annual invoice of polls and 
taxable property. 81 
Of the appraisal of taxable property. 83 
Of the assessment of taxes. 85 
Of the abatement of taxes. 89 
Of the collection of taxes of residents. 90 
Of the collection of taxes of nonresi- 
dents. 96 
Of the state and county tax, and the 
surplus revenue. 104 
General provisions concerning the 

assessment and collection of taxes. 105 
Of extents. 109 

TITLE IV. 



Chapter 17. 

Chapter 18. 

Chapter 19. 

Chapter 20. 
Chapter 21. 
Chapter 22. 
Chapter 23. 

Chapter 24. 

Chapter 25. 
Chapter 26. 
Chapter 27. 

OF 
Chapter 28. 

Chapter 29. 

Chapter 30. 
Chapter 31. 
Chapter 32. 
Chapter 33. 

Chapter 34. 

Chapter 35. 

Chapter 36. 



HIGHWAYS AND BRIDGES. 

Of the powers of selectmen in rela- 
tion to laying out highways. 115 
Proceedings of the court of common 
pleas and road commissioners. 124 
Of the payment of damages and costs. 125 
Of the discontinuance of highways. 128 
Of repairing highways in towns. 129 
Of making and repairing highways 
not in any town. 136 
Of the liability of towns for not making 
and repairing highways, and for damages. 138 
Of injuries to, and encumbrances 
and encroachments on highways, 
and the rights of the public and land- 
owners therein. 142 
Of bridges, rail-roads, guide-boards 
and the law of the road. 147 



ANALYSIS OF CONTENTS. 



TITLE V. 

OF SCHOOLS. 

PAGE. 

Chapter 37. Of the creation, division and powers 

of school districts. 151 

Chapter 38. Of the meetings and officers of school 

districts. 158 

Chapter 39. Of school houses. 166 

Chapter 40. Of school taxes and school money. 173 
Chapter. 41. Of the regulation, instruction and in- 
spection of schools. 176 
Chapter 42. Of schools in the town of Portsmouth. 181 

TITLE VI. 

OF PAUPERS AND THE PREVENTION OF 
PAUPERISM. 

Chapter 43. Of the settlement of paupers. 185 

Chapter 44. Of the support and disposal of paupers. 197 
Chapter 45. Of paupers not chargeable to any 

town or person in the state. . 210 

Chapter 46. Of the maintenance of bastards. 214 

Chapter 47. Of the guardianship of spendthrifts 

and insane persons/ 223 

Chapter 48. Of the duty of selectmen relative to ap- 
prentices and insane paupers. 229 



TITLE VII. 

OF THE PRESERVATION OF PEACE, HEALTH 
AND GOOD ORDER IN TOWNS. 

Chapter 49. Of fires and firewards. 237 

Chapter 50. Of police regulations. 244 

Chapter 51. Of houses of correction and the punish- 
ment of idle and disorderly persons. 249 
Chapter 52. Of police officers,constables and watch- 
men. 251 
Chapter 53. Of licensed taverners and retailers. 255 
Chapter 54. Of Sunday and religious meetings. 259 



Xll 



ANALYSIS OF CONTENTS. 



PAGE. 

262 



Chapter 55. Of the safe keeping of gun-powder 

Chapter 56. Of nuisances and contagious diseases. 264 

Chapter 57. Of shows and exhibitions. 269 

Chapter 58. General provisions relating to this title. 270 

TITLE VIII. 

REGULATIONS CONCERNING PROPERTY. 

Chapter 59. Of mills and their repairs. 275 

Chapter 60. Of fences and fence-viewers. 2S1 

Chapter 61. Of common fields. 294 

Chapter 62. Of pounds and impounding animals. 295 

Chapter 63. Of floating timber. 306 

Chapter 64. Of strays and lost goods. 310 

TITLE IX. 

DUTIES OF TOWN OFFICERS IN SPECIAL 

CASES. 

Chapter 65. Of the drawing of jurors. 313 

Chapter 66. Of the militia. 318 

Chapter 67. Of surveyors, weighers and measurers. 321 

Chapter 68. Of wild animals, dogs and sheep. 325 

Chapter 69. Special duties of town clerks. 327 



APPENDIX. 



1. Form of records of town-meetings 

2. The invoice and tax list. 

3. The construction of statutes. 



331 
334 
337 



TITLE I. 



OF TOWNS AND TOWN OFFICERS. 



Chapter 1. Of the powers and duties of towns. 

Chapter 2. Of warning town meetings. 

Chapter 3. Of the government and powers of town 

meetings. 
Chapter 4. Of the choice and duties of town officers, 

and of filling vacancies. 

5. Of the oaths of town officers. 

6. Of town lines. 

7. Of proprietary records. 

8. Of actions by and against towns. 



Chapter 
Chapter 
Chapter 
Chapter 



CHAPTER 1, 



OF THE POWERS AND DUTIES OF TOWNS. 



1. Towns are bodies corporate. 

2. Parishes declared to be towns. 

3. Towns may hold property and 
make contracts. 

4. Town may raise taxes. 

5. Ministerial tax, when raised. 

6. Towns may make by-laws. 

7. By-laws respecting cattle. 

8. By-laws valid till annulled. 

9. Subjects acted on to be stated. 

10. Unincorporated places. 

11. Legislature may alter towns. 

12. Property, how divided. 

13. If no division, how vested. 

14. Conveyance by towns. 



15. No power to tax unless given 
by statute. 

16. Power to release a debt. 

17. What act of legislature illegal. 
Article in warrant,when suffi- 
cient. 

Notice of petition affecting 
rights of town to be given. 

20. Vote of tax, when sufficient. 

21 . Same subject. 

22. " Necessary charges," what. 

23. Other powers of town. 

24. Power to rescind contract. 

25. Entitled to statutes and re- 
ports. 



18 



19 



1. The inhabitants of every town in this state are a body 
corporate and politic, and by their corporate name may sue 
and be sued, prosecute and defend, in any court or else- 
where. R. S.,chap. 31, sec. 1. 

2. All places incorporated by the name of parishes, with 



14 OF THE POWERS AND 

town privileges, are declared to be towns, and ent'tled to 
the privileges, vested with all the powers, and subject to all 
the liabilities of towns. R. S., chap. 31, sec. 2. 

3. Towns may purchase and hold real and personal es- 
tate for the public uses of the inhabitants, and may sell and 
convey the same, and may make any contracts which may 
be necessary and convenient for the transaction of the public 
business of the town. R. S., chap. 31, sec 3. 

4. Towns may at any legal meeting, grant and vote such 
sums of money as they shall judge necessary, for the sup- 
port of schools, for school-houses, for the maintenance of 
the poor, fo laying out and repairing highways, for building 
and repair ng bridges, for the repair of meeting-houses 
owned by the town, so far as to render them useful for town 
purposes, and for all the necessary charges arising within 
the town. R. S., chap. 31, sec. 4. 

5. Towns may vote such sums of money as may be ne- 
cessary to fulfill any existing contract made between .the 
town and any settled minister before the first day of July, 
1819 : provided, no person shall be taxed for the purpose of 
fulfilling such contract who shall have filed with the town- 
clerk, before the assessment of such tax, a certificate, de- 
claring h mself not to be of the religious persuasion or 
opinion of such minister. R. S., ch. Si, sec. 6. 

6. Every town may make rules and by-laws for mana- 
ging and ordering the prudential affairs of such town, and 
may annex penalties thereto, not exceeding four dollars for 
one offence, and enuring to such uses as they may direct. 
R. IS., ch. 31, sec. 5. 

7. Any town may make by-laws to prevent horses, mules, 
asses, neat cattle, sheep and swine, from going at large in 
any street, highway or common, or in any public place in 
the town, at any time of the year therein prescribed, on 
penalty that the owner shall forfeit a sum not exceeding 
four dollars for any breach thereof. R. S., ch. 31, sec. 7. 

8. By-laws adopted by any town shall continue in force 
until altered or annulled by the vote of the town, or by law. 
R. S., ch. 31, sec. 8. 

9. The subject matter of all business to be acted upon 
in any town meeting, shall be distinctly stated in the war- 
rant therefor ; and nothing done at any meeting shall be 
valid unless the subject thereof was so stated. R. S., ch 
32, sec. 2. 



DUTIES OF TOWNS. 15 

10. All places unincorporated, which shall be required 
to pay any public tax, are invested with the powers of towns 
relating to the choice of moderator and clerk, of selectmen, 
assessors and collectors ; and all the provisions of the laws 
applicable to towns and town officers are extended to such 
unincorporated places and their officers, so far as they relate 
to meetings for the choice of such officers, and to their 
election, powers, duties and liabilities ; and so far as they re- 
late to public highways, the assessment and collection of 
public taxes, and the perambulation of the lines of such 
places. R. S. chap. 38, sec. 1. 

11. The legislature may enlarge or curtail the powers of 
towns, or divide their territory and make new towns, when- 
ever the convenience of the public requires it. 3 N. H. 
Reports, 532. 

12. Upon such division the property and burdens may be 
apportioned between the towns as equity demands. 8 N. 
H. R. 320 ; 3 N. H. R. 532. 

13. Upon such division the old corporation retains all 
the property, rights and privileges, and remains subject to 
all its obligations and duties, unless some new provision is 
made by the act authorizing the separation. 4 Mass. Rep. 
384, 539; 2 N. H. R. 21 ; 8 ditto 320. 

14. Towns cannot pass the title to real estate owned by 
the town, by a vote merely ; the conveyance should be by 
an agent or agents, duly appointed by the town at some 
meeting for that purpose. 5 N. H. R. 461. 

15. Towns derive all their powers to raise money by tax- 
ation, from the statute ; a vote to raise money for a purpose 
not authorized by statute, is illegal and void. 3 N. H. R. 
498 ; 14 Maine Rep. 375. 

16. Towns may release a debt as well as contract one, by 
a vote of the majority ; 8 Greenl. R. 334 ; 3 N. H. R. 499 ; 
and the town, or the selectmen thereof, may remit any pen- 
alty or forfeiture belonging to such town. R. S. ch. 212, 
sec. 6. 

17. The legislature has not a constitutional right to im- 
pose a tax on the lands in a particular town or unincorpo- 
rated place, for any purpose; the law should extend to all 
towns and places. 4 N. H. R. 572. 

18. An article in the warrant for town meeting, "To 
see what sum of money the town will vote to raise for the 
support of schools, of the poor, repairing bridges and high- 



16 OF THE POWERS AND DUTIES OF TOWNS. 

ways, for the payment of the just debts of the town, and for 
other legal purposes," states with sufficient precision the 
subject matter to be acted on under it. 7 N. H. R. 113. 

19. When a petition to be presented to the legislature 
affects the rights of any town, a copy of it should be given 
to the town clerk and one selectman, thirty days at least before 
the annual meeting in March. R. S. ch. 2, sec. 2. But 
this is merely directory, as the legislature may waive it if 
they see fit. 

20. It is not necessary that towns, in their votes raising 
money for the annual expenditures authorized by law, should 
in all cases raise a specific sum for each object. A vote to 
raise a certain sum " for the expenditures of the current 
year, being the subject matter of the eighth article in the 
warrant, excepting for highways and bridges," is a legal 
vote. 7N.H.R.1U. 

21. It is the more prudent course, however, to raise a 
specific sum for each particular object, and to make the re- 
cord accordingly. 

22. What may be considered " the necessary charges 
arising within the town" is somewhat difficult to determine. 
If a power, however, is given to, or a duty imposed upon a 
town bylaw, the means required to execute the power, or 
fulfill the duty, would be " necessary charges." These in- 
clude the usual town expenses, payments to soldiers, expen- 
ses of hospitals, and vaccination to prevent the spread of 
the small pox, the erection and maintenance of guide- 
boards, the cost of actions by and against the town, the 
erection of a town house,poor house and house of correction, 
the expense of providing pounds, standard weights and 
measures and record books, and all expenditures for objects 
authorized by any statute, or necessary to carry the object 
of such statute into effect. 

" The authority of a town to raise money by taxation, is 
limited to a very few objects." 4 N. H. R. 500. These ob- 
jects are defined by statute, or arise necessarily therefrom ; 
otherwise the tax is illegal. Thus a vote to pay a toll-bridge 
company $400 per annum for the right of all the inhab- 
itants of the town to pass the bridge free of toll, however 
advantageous, was held in Maine to be illegal. 3 Greenleaf 
R. 191. So a vote to repair a meeting-house " for religious 
and town use," is illegal — 8 Greenleaf R. 400; or to build 
a house to rent — ibid; or to build a jail — 10 Vt. Rep. 506; 



OF WARNING TOWN MEETINGS. 



17 



see, also, chap. 26 ; or a place of amusement, or a monu- 
ment. 13 Mass. 279. 

23. The other powers and duties of towns will be found 
under their appropriate titles, or under the title of the offi- 
cer who is to attend to the execution of the law. 

24. A town has no power to rescind a contract once le- 
gally made, any more than an individual has. 7 JV. H. R. 
255. 

25. Each town is entitled to a copy of the Revised Stat- 
utes and Laws of each session — R. S. ch. 3, sec. 3 ; the 
Journals of the House and Senate — R. S. ch. 3, sec. 8 ; the 
Laws of the United States — R. S. ch. 3, sec. 5 ; and the 
New-Hampshire Reports — R. S. ch. 11, sec. 5. 



CHAPTER 2. 



OF WARNING TOWN MEETINGS. 



1. Annual meeting, when hold- 
en. 

2. Special meetings, when warn- 
ed. 

3 Warrant, how to be drawn. 

4. Articles inserted in warrant. 

5. Others inserted on application, 

or a meeting called. 

6. Warrant posted by selectmen. 

7. Warrant posted by constabl e 

8. Town may prescribe mode. 

9. Return of service, how made. 

10. Majority in office may act. 

11. Justice may warn meeting on 
neglect of selectmen. 

12. Or on failure of meeting. 

13. Form of warrant and return. 

14. Neglect to warn, penalty. 

15. Applications, requisites of. 

16. Rules as to calling meetings. 

1. The annual meeting of every town shall beholden on 
the second Tuesday, or other day, in March annually, for 
the choice of town officers, and the transaction of other 
town business. R. S. ch. 32, sec. 1. 



17. Service and return, requisites. 

18. Original may be posted. 

19. Form of warrant directed to a 
constable. 

20. Form of constable's return. 

21. Form of warrant when posted 
by selectmen. 

22. Form of return thereon. 

23. Form of application to select- 
men to call meeting. 

Form of application to justice, 

on neglect of selectmen. 
Form of warrant issued by 

justice. 

Same subject. 

Form of application to justice 

when annual meeting not 

holden. 
Form of warrant therefor. 



28 



18 OF WARNING TOWN MEETINGS. 

2. A town meeting may be warned by the selectmen, 
when in their opinion there shall be occasion therefor. R. 
S. ch. 32, sec. 1. 

3. The warrant for every town meeting shall be under 
the hands and seal of the selectmen, and shall prescribe the 
place, day and hour of the meeting. R. S. ch. 32, sec. 2. 

4. The subject matter of all business to be there acted 
upon shall be distinctly stated in the warrant, and nothing 
done at any meeting shall be valid unless the subject thereof 
was so stated. R. S. ch. 32, sec. 2. 

5. The selectmen, upon the written application often or 
more voters, or of one sixth part of the voters in the town, 
shall insert in their warrant for the annual, or any other 
meeting, any subject specified in such application, or shall 
warn a meeting therefor, if requested in such application. 
R. S. ch. 32, sec. 3. 

6. The selectmen may address their warrant to the in- 
habitants of the town qualified to vote in town affairs, in 
which case they shall post up an attested copy of such war- 
rant at the place of meeting, and a like copy at one other 
public place in the town, fifteen days before the day of 
meeting. R. 8. ch. 32, sec. 4. 

7. Warrants for town meeting may be directed to a con- 
stable of such town, requiring him to notify the inhabitants ; 
and such constable shall post up an attested copy of such 
warrant, as provided in the preceding section. R. S. ch. 
32, sec. 5. 

8. Any town may by vote prescribe a different method of 
warning meetings, and the meetings warned in pursuance 
of such vote shall be legal and valid. R. S. ch. 32, sec. 6. 

9. The selectmen or the constable serving any warrant, 
shall return the same at the time and place of meeting, 
with a certificate of the service thereof, to the town-clerk, 
or, in his absence, to one of the selectmen. R. S. ch. 32, 
sec. 7. 

10. In case of the death or removal of any of the select- 
men of a town, the major part of those who remain in 
office shall have power to warn meetings. R. S. ch. 32, 
sec. 8. 

11. If the selectmen shall unreasonably neglect or refuse 
to warn a meeting, or to insert any article in their warrant, 
a justice of the peace, upon application in writing of one 



OF WARNING TOWN MEETINGS. 19 

sixth part of the voters of such town, may issue a warrant 
for such meeting. R. S. cli. 32, sec. 9. 

12. If the annual meeting in any town shall not have 
been holden, or if there has never been any legal meeting 
of such town, a justice of the peace, on application of ten 
voters, or of one sixth part of the voters of the town, may 
issue a warrant for such meeting. R. S. ch. 32, sec. 10. 

13. The warrant of a justice of the peace for a town 
meeting shall be under his hand and seal, directed to a con- 
stable of the town, if any there be; otherwise to one of the 
voters applying ; shall specify the time, place and objects of 
the meeting, and shall be served and returned in the same 
manner as warrants issued by selectmen. R. S. ch. 32, 
sec. 11. 

14. If any selectmen shall neglect to issue a warrant for 
the holding of meetings for the choice of state, county or 
town officers, electors of president and vice president of the 
United States, or representatives in congress, or shall neg- 
lect to cause copies of such warrant, if not directed to a 
constable, to be duly posted up, or notice of such meeting 
to be given agreeably to any vote of the town, they shall, 
for each offence, forfeit the sum of fifty dollars, one half to 
the use of the town, the other half to the use of the person 
who may sue for the same. R. S. ch. 32, sec. 12- 

15. Every application for a town meeting must be in 
writing, and signed by at least ten legal voters of the town, 
if there are sixty voters or more in the town ; otherwise, by 
one sixth part of the legal voters of the town. 

16. The selectmen may call a town meeting when they 
think proper, without any application, but they shall call 
one upon application as aforesaid. If there has never been 
any meeting of the town, or if the annual meeting has failed 
to be holden, the warrant must be issued by a justice. If 
the selectmen unreasonably neglect or refuse, any justice, 
on written application, may issue his warrant for a meeting. 

J 7. The return of the constable, or selectmen who post 
up the warrant, must state the day on which it was posted 
up, and the places where it was so posted, one of which 
places must appear to be the place of meeting, and the 
other a public place. The following returns are wrong : 
" B., March 11, 1828. These certify that the within war- 
rant has been posted up for more than fifteen days. S. W., 
J. W., Selectmen." 6 N. H. R. 195. " March 12, 1822. 




20 OF WARNING TOWN MEETINGS. 

Lawfully posted a true copy of the within articles." 6 N. 
H. R. 184. 

18. " The posting of the original warrant, instead of a 
copy, is a valid notice of a town meeting." 7 N. H. R. 284. 

19. The form of a warrant for calling a town meeting, 
when directed to a constable, may be as follows : 

STATE OF NEW-HAMPSHIRE. 

To D. TV. one of the constables of the 
town of Nashua, in the county of Hillsbo- 
rough, GREETING. 

In the name of the state of New-Hampshire you are di- 
rected to notify the inhabitants of said town of Nashua, 
qualified by law to vote in town affairs, to meet at Rev. Mr. 
R's meeting house in said town, on Tuesday, the fourteenth 
day of March next, at nine of the clock in the forenoon, 
then and there to act on the following subjects : 

1. To choose a moderator, to preside in said meeting. 

2. To choose all necessary town officers for the year 
ensuing. 

3. To bring in their votes for governor, counsellor, 
senator, county treasurer, register of deeds and three 
road commissioners. 

4. To determine the number of representatives said 
town will choose the present year. 

5r To choose one or more representatives to represent 
said town in the general court, to be held at Concord, on 
the first Wednesday of June next. 

6. To raise such sums of money as may be necessary 
to defray town charges for the ensuing year, and make 
appropriation of the same. 

7. To see if the town will adopt the provisions of 
chapters 113 and 114 of the Revised Statutes, or any 
part thereof. 

8. To see if the town will vote to discontinue the 
highway leading from to 

Hereof fail not, and make due return of this warrant, 
with your doings thereon, to the town-clerk, or in his • ab- 
sence to one of the selectmen, at the time and place of 
meeting as aforesaid. 

Given under our hands and seal, this twenty-seventh day 



OF WARNING TOWN MEETINGS. 2l 

of February, in the year one thousand eight hundred and 
forty-three. 

A. B. \ 

C. D. > Selectmen of Nashua. 
E. F. J 

20. The form of the constable's return of service on the 
back of any warrant for town meeting by hirn served may 
be as follows : 

Nashua, March 14, 1843. Pursuant to the within 
warrant I have notified said inhabitants to meet at the time 
and place, and for the purposes within mentioned, by post- 
ing up an attested copy of such warrant at the place of 
meeting within specified, and also a like attested copy at 
the tavern of W. W. P., being a public place in said town, 
on the twenty-eighth day of February last, being fifteen 
days before said meeting. 

D. W., Constable of Nashua. 

21. When the warrant is posted up by the selectmen, the 
form may be as follows : 

STATE OF NEW-HAMPSHIRE. 

vj|pl!{j^v To the inhabitants of the town of N, in 
♦wMji |^)l) t ne county of H., in said state, qualified to 

^ ^jQiai Ui S x vote in town affairs. 
You are hereby notified to meet at the Baptist meeting- 
house in said N., on Tuesday, the fourteenth day of March 
next, at nine of the clock in the forenoon, to act upon the 
following subjects : 

1. To choose a moderator, to preside in said meeting. 

2. To choose all necessary town officers for the year 
ensuing. 

3. To bring in your votes for governor, counsellor, 
senator, county treasurer, register of deeds and three 
road commissioners. 

4. To determine, &lc. &,c. 

Given under our hands and seal, this twenty-seventh 
day of February, in the year eighteen hundred and forty- 
three. A. B. ) 

C. D. } Selectmen of N 

E. F. j 



22 OF WARNING TOWN MEETINGS. 

22. The return of the selectmen may be as follows : 

N — , March 14, 1843. We hereby certify that we gave 
notice to the inhabitants within named, to meet at the time 
and place, and for the purposes within mentioned, by post- 
ing up an attested copy of the within warrant at the place 
of meeting within named, and a like attested copy at the 
tavern of W. M., being a public place in said town, on the 
twenty-seventh day of February, 1843. 

A. B. ) 

C. D. } Selectmen of N. 

E. F.J 

23. The application to the selectmen to call a town 
meeting, may be as follows : 

To the Selectmen of the town of Merrimac. 
You are requested by the subscribers, legal voters of said 
town, to call a meeting of the inhabitants of said town, and 
to insert in the warrant for the same an article in substance 
as follows, viz. To see if the town will vote to set off the 
homestead farm of A. B. from school district No. 1, and 
annex the same to school district No. 2. 

A. B. } C. D., E. F., &c. 
Merrimac, Sept. 10, 1842. 

24. The form of the application to a justice, when the 
selectmen neglect or refuse to call a meeting, or insert an 
article as aforesaid, may be thus : 

To P. C, Esquire, one of the Justices of the Peace for 
the county of Hillsborough. 

The subscribers, being one sixth part of the legal voters 
in the town of Merrimac, in said county, respectfully shew 
that on the tenth day of September last, sundry voters of 
said town made written application to the selectmen thereof, 
a copy of which is as follows : 
( Here insert a copy of the application, names of signers, fyc.) 

Yet the said selectmen have unreasonably neglected to 
comply with said request; Wherefore the subscribers request 
you to issue a warrant to call a meeting of the inhabitants 
of said town, to act upon the article contained in said appli- 
cation. A- B., C. D. } &c. 




OF WARNING TOWN MEETINGS. 23 

25. The warrant issued by the justice upon such appli- 
cation must be under seal, and may be as follows : 

STATE OF NEW-HAMPSHIRE. 

To S. M.,one of the Constables of the town 
of Merrimac, in the county of Hillsbo- 
rough, GREETING. 

Whereas application has been made to me, one of the 
justices of the peace for said county, by one sixth part of 
the legal voters in said town, to call a meeting of the inhab- 
itants of said town, to act upon the article hereinafter 
mentioned ; and whereas it has been made to appear to me 
that the selectmen of said town, upon application in writ- 
ing duly made to them for the purpose, have unreasonably 
neglected to insert said article in the warrant for a town 
meeting issued next after said application to them : 

In the name of said state you are required to warn the 
inhabitants of said town qualified to vote in town affairs, to 
meet at the congregational meeting-house in said town, on 
the twenty-seventh day of September next, at nine of the 
clock in the forenoon, to act upon the following subjects : 

1. To choose a moderator, to preside in said meeting. 

2. To see if the town will vote to set ofT the home- 
stead farm of A. B. from school district No. 1, and annex 
the same to school district No. 2. 

Fail not to make due service of this warrant, and to 
make return thereof, with your doings thereon, to the clerk 
of said town, or, in his absence, to one of the selectmen, at 
the time and place of meeting aforesaid. 

Given under my hand and seal, this day of , A. D. 
1843. P. C, Justice of the Peace. 

26. If in such case the selectmen have unreasonably neg- 
lected to call a meeting, omit the words, " have unreason- 
ably neglected to insert said A article in the warrant for a 
town meeting issued next after said application to them," 
and insert instead — have unreasonably neglected to call a 
meeting, to act upon said article. 

27. If the annual meeting in any town shall not have 
been holden, the form of an application to a justice may 
be thus : 



24 OF WARNING TOWN MEETINGS. 

To P. C, Esquire, a Justice of the Peace for the county 
of Hillsborough. 

The subscribers, legal voters of the town of N., in said 
county, represent that the annual meeting of the inhabit- 
ants of said town, required by law to be holden in March 
annually, has not been holden, and that it is necessary that 
such meeting should be holden, and town officers duly cho- 
sen, and other business transacted by said town. You are 
therefore requested to issue a warrant to call a meeting of 
the inhabitants of said town, to act upon the following sub- 
jects : 

1. To choose a moderator to preside in said meeting. 

2. To choose all necessary town officers. 

3. To, &c. T. R., G, H., &c. &c. 

28. The warrant issued by the justice on such applica- 
tion must be under seal, and may be as follows : 

STATE OF NEW-HAMPSHIRE. 

/jf^P^v To S. M., one of the Constables of the town 
Sllilfilii °f ^"> ™ ^ le count y °f Hillsborough, 

N^gjjyp' GREETING. 

Whereas application has been made to me, one of the jus- 
tices of the peace for said county, by ten legal voters in 
said town, to call a meeting of the inhabitants of said town 
qualified to vote in town affairs, to act upon the articles 
hereinafter mentioned ; and whereas it appears to me that 
the annual meeting of said town has not been holden ac- 
cording to law : 

In the name of said state you are required, &c. &,c. 
( The remainder of the Warrant may be the same as in sec- 
tion 25. ) If there is no constable, it should be directed to 
one of the voters applying. 



25 



CHAPTER 3. 



OF THE GOVERNMENT AND POWERS OF TOWN 
MEETINGS. 



1. Who presides till moderator 
chosen. 

2. When justice presides. 

3. Choice and powers of mode- 

rator. 

4. Vote made certain by a poll. 

5. Disorderly speaking, penalty. 

6. Disorderly conduct, penalty. 



7. Constable to enforce order. 

8. Disorderly conduct indicta- 
ble. 

9. Power to adjourn or dissolve. 

10. Effect of illegal votes. 

11. Who are legal voters. 

12. Liability of moderator. 



1. At every town meeting the selectman present who is 
senior in rank shall preside until a moderator is chosen, 
and shall have the powers and perform the duties of mode- 
rator. If no selectman is present the town-clerk shall pre- 
side. R. S. ch. 33, sec. 1. 

2. When there are no selectmen or town-clerk of the 
town, it shall be the duty of the justice calling such 
meeting to attend and preside until a moderator is chosen. 
R. S. ch. 33, sec. 2. 

3. At every town meeting a moderator shall be first cho- 
sen by ballot, by a majority of votes, who shall be sworn, 
and shall preside in and regulate the business of the meet- 
ing ; may prescribe rules of proceeding therein, which may 
be altered by the town ; shall decide all questions of order, 
and make a public declaration of all the votes passed. R. 
S. ch. 33, sec. 3. 

4. When any vote declared by the moderator shall im- 
mediately, and before any other business is commenced, 
be questioned by seven or more of the voters present, the 
moderator shall make the vote certain by a poll of the 
voters. R. S. ch. 33, sec. 4. By " a poll of the voters" is 
understood any mode of counting the polls, or heads, 
which can render the count certain. 

5. No person shall speak in any meeting without leave of 
the moderator, nor when any person is orderly speaking ; 
and all persons shall be silent at the desire of the modera- 



26 OF THE GOVERNMENT OF TOWN MEETINGS. 

tor, on pain of forfeiting one dollar for each offence, for the 
use of the town. R. S. ch. 33, sec. 5. 

6. If any person shall conduct in a disorderly manner, 
and, after notice from the moderator, shall persist therein ; 
or shall in any way disturb the meeting, or willfully violate 
any rule of proceeding therein, the moderator may com- 
mand any constable, or any legal voter of such town, to 
carry such disorderly person out of the meeting, and detain 
him until the business of the meeting is finished. R. S. 
ch. 33, sec. 6. 

7. Every constable shall obey the orders and commands 
of the moderator for the preservation of order, and may 
command such assistance as is necessary ; and if any con- 
stable shall neglect to perform any of the duties required by 
this or the preceding chapter, he shall forfeit the sum of 
forty dollars, one half for the use of the town, the other 
half to any person who will sue for the same. R. S. ch. 
33, sec. 7. 

8. Disorderly behavior in town meetings is a misde- 
meanor at common law, and punishable by indictment. 16 
Mass. R. 385. 

9. Any town meeting, after it is organized, may be ad- 
journed from time to time, and to such place within the 
same town, or may be dissolved, as a majority of the voters 
present shall determine. 13 Maine R. 466. 

10. If persons should vote who were not legally author- 
ized, without being challenged, it would not vitiate the pro- 
ceedings. 3 Pick. R. 232. 

11. The rights and qualifications of voters are the same 
as in other elections. See ch. 9. 

12. A moderator will not be liable to an action for refus- 
ing to receive the vote of a person who is a legal voter, 
without proof of malice express or implied. 1 N. H. R. 88. 



27 



CHAPTER 4. 

OF THE CHOICE AND DUTIES OF TOWN OFFICERS, 
AND OF FILLING VACANCIES. 



1 . Town clerk,choice and duties. 

2. Selectmen, " " " 

3. Assessors, " " a 

4. Agents, overseers of poor, &c. 

5. Constables, and other officers. 

6. Duration of office. 

7. Choice, how made. 

8. Vacancy filled by town. 

9. Powers of such officers. 

10. Collector appointed by select- 
men. 

1 1 . Collector and constable to give 
bond. 

12. Compensation of collector. 

13. Collector may appoint depu- 
ties. 

14. Vacancy in any town office 
filled by selectmen. 

15. Treasurer appointed by se- 
lectmen. 

1C. When officer " becomes in- 
sane." 

17. Form of appointment. 

18. Form of bond to town. 

19. Requisites of bonds. 

20. Form of agreement with col- 
lector or treasurer. 



21. General form of records. 

22. Records may be amended. 

23. Town-clerk cannot make a 
record of proceedings before 
his election. 

24. Parol testimony not admissible 

to supply record. 

25. Penalty on town -clerk for 
making false record or copy. 

26. Penalty for not giving copy. 

27. Fees of town-clerk. 

28. Authority, how executed by 
agents. 

29. When majority may act. 

30. Responsibility of selectmen 
and officers acting under 
them. 

"Selectmen," in statute mean- 
ing of. 

Construction of titles. 
Selectmen are agents of town. 
Powers of special agents. 
Collectorship, not to be sold. 

36. No person compelled to serve 
two years, nor as constable. 

37. Form of record of elections. 

38. Other powers and duties. 



1. Every town at the annual meeting shall choose, by 
ballot and by major vote, a town-clerk, whose duty it shall 
be to record all votes passed by the town while he may 
remain in office, and to discharge all the duties of the 
office according to law. R. S. ch. 34, sec. 1. 

2. At such meeting three or more selectmen, not exceed- 
ing nine, shall be chosen, by ballot and by major vote, who 
shall manage all the prudential affairs of the town, and 
shall perform all the duties by law prescribed. A majority 
of the selectmen shall be competent to act in all cases. 

3. Any town may choose assessors, by ballot and by major 
vote, who shall constitute, with the selectmen, a joint board 



28 OF THE CHOICE AND DUTIES OF TOWN 

for the assessment of taxes ; and all questions arising at such 
board shall be decided by a major vote of the joint members 
thereof. R. S. chap. 34, sec. 3. 

4. Any town may choose, by major vote, one or more 
agents, overseers of the poor, a treasurer, firewards and 
health officers. If such officers are not chosen, the select- 
men shall discharge the duties and have the powers of that 
office. R. S. chap. 34, sec. 4. 

5. Every town may choose, by major vote, one or more 
constables ; one or more collectors of taxes ; surveyors of 
highways ; fence-viewers ; a clerk of the market ; sealers 
of weights and measures ; hog-reeves ; a pound keeper ; 
measurers of wood ; surveyors of lumber ; cullers of staves, 
and every other officer who may be directed by law to be 
chosen, and such other officers as they may judge necessary 
for managing their affairs, who shall severally perform the 
duties prescribed by law. R. S. ch. 34. sec. 5. The other 
town officers which may be chosen, are superintending 
school committee, (who are to be chosen by ballot ;) auditors, 
police officers, watchmen, agents for vaccination, &c. 

6. All town officers shall continue in office until the 
next annual meeting for the choice of town officers, and 
until others shall be chosen and sworn in their stead, ex- 
cept in cases where the law shall otherwise direct. R. S. 
chap. 34, sec. 6. 

7. Every choice must be made by a majority of the legal 
voters who vote ; but no election need be by ballot, except 
where expressly required. If the choice is by ballot the 
record should so state. 

8. When any person, elected to any town office, shall 
not accept the same, or shall die, resign, remove from town, 
or become insane in the judgment of the town, or when no 
annual meeting shall have been holden for the choice of 
town officers, or no choice has been made, or when there 
shall be a vacancy in any other way, the town may choose 
such officer at any legal meeting holden for that purpose, 
or at the adjournment of the annual meeting. R. S. 
chap. 36, sec. 1. 

9. The powers, duties and liabilities of every officer so 
chosen shall be the same as if he were chosen at the annual 
meeting ; and he may take up the business appertaining to 
his office where his immediate predecessor left it, and proceed 
to the full execution of the same. R. S. chap. 36, sec. 2. 



OFFICERS, AND FILLING VACANCIES. 29 

10. When any town shall neglect or refuse to choose a 
collector of taxes, or to fill a vacancy in that office, or where 
any town shall by vote at their annual meeting so direct, 
the selectmen may appoint a collector or collectors of taxes, 
whose powers, duties and liabilities shall be the same as 
those of collectors chosen by the town. JR. S. chap. 36, 
sec. 3. The sale of the office of collector is illegal, even 
if the same person is afterward elected. 7 N. H. R. 114. 

11. Every collector or constable shall, within six days 
after his election or appointment, give a bond, with sufficient 
sureties, to the acceptance of the town or of the selectmen, 
for the faithful performance of the duties of his office, and 
in default thereof the office shall become vacant. R. S. 
chap. 36, sec. 4. 

12. Every town may, at their annual meeting, determine, 
by vote or otherwise, the rate or amount of compensation 
to be allowed the collector of taxes for his services ; and 
whenever the selectmen shall appoint a collector, they shall 
make a written agreement as to such compensation, which 
shall be signed by the selectmen and collector. JR. *S. 
chap. 36, sec. 5. 

13. Any collector, being authorized by vote of the town, 
may appoint deputies, who shall be sworn, shall give bond 
to the satisfaction of the selectmen, and shall have the powers 
of collectors, and may be removed at the pleasure of the 
collector. JR. S. chap. 45, sec. 19. 

14. Whenever a vacancy shall occur in any town office, 
other than that of selectman, the selectmen may, in writing, 
appoint some suitable person to the office, who shall be 
sworn ; and his appointment and a certificate of such oath 
being recorded in the records of the town, he shall have 
the powers, perform the duties, and be subject to the 
liabilities of such officer until another person shall be chosen 
and qualified ; and it shall be the duty of the selectmen 
without delay so to appoint a town-clerk, whenever a vacancy 
shall occur in that office. R. S. chap. 36, sec. 6. 

16. The selectmen, being authorized by vote of the town, 
shall appoint a treasurer within fourteen days after their elec- 
tion, and fix his compensation by a written contract. Such 
treasurer shall be sworn, shall give bonds for the faithful 
discharge of his duties, to the satisfaction of the selectmen, 
and shall hold his office during their pleasure. R. S. chap. 
36, sec. 7. 



30 OF THE CHOICE AND DUTIES OF TOWN 

16. When an officer shall " become insane in the judg- 
ment of the town," a vote to that effect should be passed, 
declaring the office vacant for that reason. The form may 
be thus : 

Voted, that A. B. has become insane in the judgment 
of this town, and that the office of constable held by him 
be considered vacant. 

17. The appointment of an officer by the selectmen may 
be in form following : 

To S. M., of Amherst, in the county of Hillsborough. 

Whereas there is a vacancy in the office of constable in 
said town, and whereas we the subscribers have confidence 
in your ability and integrity to perform the duties of said 
office, we do hereby appoint you, the said S. M., a constable 
of said town ; and upon your taking the oath of office and 
having this appointment and the certificate of said oath of 
office recorded by the town-clerk, you shall have the powers, 
perform the duties, and be subject to the liabilities of such 
office, until another person shall be chosen and qualified in 
your stead. 

Given under our hands this fifteenth day of March, 1843. 
C. F. G., A. M.,T. P., Selectmen of A. 

18. The form of a bond to be given by an officer may 
be thus : 

Know all men by these presents, that we, A. B., of 
M., in the county of , as principal, and 

C. D. and E. F., of said M., as sureties, are held and firmly 
bound unto the said town of M., in the sum of dol- 

lars ; to which payment well and truly to be made we bind 
ourselves, our heirs, executors and administrators, by these 
presents. Witness our hands and seals, this day 

of , 18 . 

The condition of this obligation is such, that whereas the 
said A. B. has been chosen a for said town 

for the year 1843 : Now if the said A. B. shall well and 
faithfully perform all the duties of his said office, then this 
obligation to be void ; otherwise to remain in full force. 

Signed, sealed and delivered, A. B. (seal.) 

in presence of us. C jy ( sea i} 

E. F. (seal.) 



OFFICERS, AND FILLING VACANCIES. 31 

19. All bonds given by town officers should be in a sum 
sufficient to cover all possible liabilities ; should be signed 
by two or more sureties, to be approved by the town or by 
the selectmen, and be filed with the town-clerk. If the 
bond is approved by the town, the town-clerk may make a 
record thereof, thus : 

Voted, that the bond filed this day by A. B., constable, 
be approved by the town. 

If approved by the selectmen, the approval may be written 
on the back of the bond, as follows : 

N , March 16, 1843. This certifies that we are 

acquainted with G. D. and P. T., the sureties named in the 
within bond, and believe that they are able and sufficient 
to respond the penalty thereof : 

C. F. G., A. M., C. F. P., Selectmen. 

20. The agreement between the selectmen and a Collect- 
or or treasurer, may be in form as follows : 

Whereas N. D., of H., in the county of M., has been ap- 
pointed (or chosen, if the fact is so,) a of said 
town for the year : Now it is hereby agreed be- 
tween G. D., P. L. and M. G., selectmen of said town, in 
behalf of said town, on the one part, and the said N. D. on 
the other part, that the said N. D. shall receive of said town 
for his services in said office the following compensation : 

Witness our hands this day of 18 . 

G. D.,P. L., M. G., N. D. 

21. Every record made by the town-clerk is made by 
him under the sanction of an oath. It should state all pro- 
ceedings fully and truly, and should in all cases be signed 
by him and attested thus : "A true record. Attest: A. B., 
town-clerk of N." If a paper is copied into the record 
book it should be done carefully, and attested thus : "A 
true copy of the original. Attest : 

A.B., Town-Clerk of N." 

22. If the proceedings were correct, but there is a mis- 
take in making the record, the town-clerk will in some 
cases be allowed to correct his record so as to set it right. 
This may be done by order of court, when it is to be used 
as evidence in a suit in court, upon evidence of the truth of 
the amendment, or by order of the legislature. Such 



32 OF THE CHOICE AND DUTIES OF TOWN 

amendment must be made by the person who was in office 
when the proceedings were had ; but it is not necessary 
that he should hold the office at the time of making the 
amendment. The proper form of making such amendment 
is to draw out the amendment, and annex it, with the order 
of court allowing it, to the original record. No alteration 
or erasure of the original record should be made. 9 N. H. 
R. 168 ; R. S. chap. 30, sec. 4. 

23. A person claiming to be town-clerk, and alleged to 
have been elected on the 2d of March, cannot make a re- 
cord of an adjournment of a former meeting to that day. 
2 Pick. Rep. 397. 

24. Parol testimony that such former meeting was ad- 
journed to the 2d of March, is not admissible ; provable 
only by record. 2 Pick. Rep. 397. 

25. If any town-clerk shall make any false record, or a 
false copy of a record, he may be punished therefor by con- 
finement to hard labor in the state prison not less than two 
nor more than five years. R. S. ch. 217, sec. 18. 

26. If any town-clerk shall refuse to give a copy of any 
record or paper filed in his office, he is liable to a penalty 
of thirty dollars. 

27. The fees of town-clerks are as follows : 

For every page of a copy, estimating 224 words as a 
page, 12 J cents ; 

For every part less than a page, 8 cents ; 

For a certificate on a copy, 10 cents ; 

For recording mortgages and contracts, the same fees as 
for a copy ; 

For every certificate thereon, 4 cents ; 

For discharging a mortgage, 17 cents; 

For examining records, 20 cents an hour. JR. S. ch. 
229, sec. 4, 18, 19. If he takes greater fees he is liable to 
a fine of forty dollars. R. S. ch. 229, sec. 27. 

28. When an authority is given by law to three or more 
persons, it may in general be executed by a majority of them ; 
if the authority is given by individuals, or a corporation, in 
order to bind the principal all must act. 7 N. H. R. 253. 

29. All words (used in a statute) purporting to give a 
joint authority to three or more public officers, shall be con- 
strued as giving such authority to a majority of them, unless 
otherwise expressly declared. R. S. ch. 1, sec. 13. 

30. Selectmen are not responsible for the misconduct of 



OFFICERS, AND OF FILLING VACANCIES. 33 

surveyors, collectors, or other officers to whom warrants are 
directed, nor are collectors responsible except for their own 
illegal proceedings. 3 N. II. R. 513 ; R. S. ch. 45, sec, 16. 
But surveyors may be so liable. 3 N. H. R. 516. 

31. The word " selectmen" (when used in a statute) 
may be construed to mean the selectmen of the town to 
which the subject matter to be acted on belongs, or in which 
it is situate. R. S. ch. I, sec. 23. 

32. When any officer or board is named by their official 
title, in any statute, such designation may be construed to 
apply to the officer or board of the town or district within 
and for which they are qualified to act in such capacity. 
R. S. ch. l,sec. 24. 

33. Selectmen are general agents for towns, in respect to 
pecuniary matters ; and unless restrained by a special vote, 
are warranted in paying any existing debts of the town 
which are of a nature requiring immediate payment — 2 N. 
H. R. 251. They may bind the town by note for the sup- 
port of a pauper — 7 JY. H. R. 298 ; and waive notice of the 
sums expended — 3 JY. H. R. 38 ; or employ counsel — 14 
Me. Rep. 20. 

34. An agent appointed by a vote of the town for a par- 
ticular purpose can do no act which is not authorized by 
such vote. 9 N. H. R. 363. 

35. It is an incorrect practice in towns to set up the of- 
fice of collector at auction. 6 N. H. R. 183. A proper 
choice should be made by the town, and the compensation 
be fixed by the town, or left to be settled by the select- 
men. Ibid. ; 7 N. H. R. 114. 

36. No person shall be compelled to serve in any town 
office two years successively, nor shall any person in any 
case be compelled to serve as a collector of taxes. R. S. 
ch. 35, sec. 9. 

37. The form of the record of the choice of officers may 
be found in the appendix. 

38. The other powers and duties of town officers may be 
found under their appropriate titles. 



34 



CHAPTER 5. 

OF THE OATHS OF TOWN OFFICERS. 



1. Oath of office, how taken. 

2. Oath of moderator and select- 
men. 

3. Form of oath. 

4. Notice to take oath in meeting. 

5. Notice if officer not present. 

6. Neglect of constable, penalty. 

7. Neglect to take oath, penalty. 



8. Penalty, when excused. 

9. Certificate of oaths recorded. 

10. Record of oath, when suffi- 
cient. 

11. Form of notice. 

12. Form of return thereon. 

13. Form of record of oath. 



1. Every town officer shall take the oath of office by law 
prescribed, before the moderator, the town-clerk, one of the 
selectmen or a justice of the peace, who are hereby au- 
thorized to administer such oath. JR. S. ch. 35, sec. 1. 

2. The moderator must be sworn, or the meeting is illegal. 
7 N. H. R. 114. So the collector must be sworn, or his 
acts are illegal ; 6 N. H. R.; and the record must so state. 

3. The form of the oath to be administered to town offi- 
cers shall be : R. S. ch. 35, sec. 2. 

" You do solemnly swear that you will faithfully and 
impartially discharge and perform all the duties incumbent 
on you as a , according to the best of your 

abilities, agreeably to the rules and regulations of the con- 
stitution and laws of the state of New-Hampshire ; so 

HELP YOU GOD." 

4. Any person chosen to any office may be notified by 
the moderator, town-clerk or one of the selectmen, in open 
meeting, to take the oath of office ; and such person, if pre- 
sent, shall immediately, in open meeting, take such oath, or 
declare his refusal ; and any person so chosen and notified, 
(not exempt from serving in such office) who shall neglect 
or refuse for one hour to take such oath, shall incur a pen- 
alty of five dollars, one half for the use of the town, the other 
half for the use of any person who will sue for the same. 
R. S. ch. 35, sec. 3. 

5. The town-clerk shall forthwith, after the choice of any 
town officer, by a precept under his hand, direct a constable 
to notify the persons so chosen, whose names, and the offices 
to which they are so chosen, shall be designated therein, 



OF THE OATHS OF TOWN OFFICERS. 35 

to appear before him within six days from the day of the 
notice given, and take the oath by law prescribed ; and the 
constable shall within four days give personal notice to the 
persons therein named, or leave a notice in writing at the 
usual place of abode of each of them, and make return of 
such precept and his doings therein, to such town-clerk 
within ten days. R. S. ch. 35, sec. 4. 

6. Any constable, neglecting his duty in any of the fore- 
going particulars, shall incur a penalty of five dollars, one 
half to the use of the town, the other half to the use of the 
person who will sue for the same. R. S. ch. 35, sec. 5. 

7. Every person so chosen and notified, not by law ex- 
empt from serving therein, who shall neglect, for six days 
after personal notice, or after notice left at his usual place 
of abode, or after his return in case he was absent when 
such notice was left, to appear before said town-clerk and 
take such oath, shall incur a penalty of five dollars, to be 
recovered and appropriated as in the preceding section. 
R, S. ch. 35, sec. 6. 

8. Any person, so chosen and notified, who shall take the 
oath of office before one of the selectmen or a justice of the 
peace, and file a certificate thereof with the town-clerk 
within said six days, shall be exempted from said penalty. 
R. S. ch. 35, sec. 7. 

9. The town-clerk shall make a record of every oath of 
a town officer taken in open town meeting, at the time of 
the election, and of every such oath taken before him at 
any other time and place, the import of which record may 
be that the officer took the oath of office prescribed bylaw ; 
and he shall record and keep on file every certificate filed 
with him pursuant to the preceding section. R. S. ch. 
35, sec. 8. 

10. A record of an oath, " sworn into office," is insuffi- 
cient. 6 N. H R. 182. So, also, " Qualified by F. Chase, 
Esq." 9 N. H. R. 170. 

11. The form of the precept issued by the town-clerk to 
notify officers to take the oath of office, may be as follows : 

To jS. M., one of the constables of the town of N. 

The following is a list of the persons who were this day 
chosen into office, at a meeting of the inhabitants of said 
town, and of whom an oath is by law required, and of the 
offices to which they were respectively chosen, viz : 



36 OF THE OATHS OF TOWN OFFICERS. 

A. B., C. D., E. F., surveyors of highways. 

N. B., P. D., constables, &,c. &c. 

You are hereby required, in the name of the state of New- 
Hampshire, within four days from the date hereof, to give 
personal notice to each person above named, or to leave a 
notice in writing at his usual place of abode, to appear be- 
fore me within six days from the time you shall give such 
notice, and take the oath of office by law prescribed. 

Hereof fail not, and make return of this precept, and of 
your doings therein, to me within ten days from the date 
hereof. Given under my hand this tenth day of March, in 
the year 1843. 

G. M., Town-Clerk of N. 

12. The form of the constable's return on the back of 
such precept may be as follows : 

N , March 16, 1843. Agreeably to the within 

precept I have this day notified A. B., C. D., and N. B., to 
appear and take the oath of office as herein directed, by 
reading to A. B. this warrant, and by leaving an attested 
copy of this warrant at the usual place of abode of C. D. 
and N. B. 

S. M., Constable of N. 

13. The record of the oath of office should state the day 
on which the oath was administered, and should be signed 
by the person who administered the oath, unless administered 
in open meeting, thus : 

N , March 14, 1S43. Personally appeared A. 

B., surveyor of highways, and N. B., constable, and seve- 
rally took the oath of office by law prescribed : before me. 

R. P., Selectman of N. 

If the oath is administered in open meeting, the record 
may be thus : 

Chose A. B. surveyor of highways, who, being present, 
took the oath of office by law prescribed. 



37 



CHAPTER 6 



OF TOWN LINES. 



1. Perambulation of lines. 

2. Return, how made and record- 
ed. 

3. Notice, how given. 

4. Penalty for neglect. 

5. If towns disagree, proceed- 
ings. 

6. Westerly line of state. 

7. Form of notice. 

8. Form of appointment of an 
agent to perambulate . 



10 



11 



Form of return of perambula- 
tion by selectmen. 
Form of return of perambula- 
tion by agent. 
Record, how made. 

12. Form of petition on disagree- 
ment. 

13. Duty of unincorporated places. 

14. Powers of selectmen and court. 

15. Mistake in lines, how correct- 
ed. 

16. Legislature may alter lines. 



1. The lines between the towns in this state shall be per- 
ambulated, and the marks and bounds renewed, once in 
every seven years forever, by the selectmen of such towns, 
or by such persons as they shall in writing appoint for that 
purpose. R. S. ch. 37, sec. 2. 

2. A return of such perambulation shall be made, partic- 
ularly describing the courses and distances, and the marks 
and monuments of such lines ; which shall be signed by the 
selectmen, or persons making the same, and recorded in the 
respective town books. R. S. ch. 37, sec. 3. 

3. The selectmen of the town first incorporated, or if 
both were incorporated on the same day, of the town which 
is highest in the proportion of public taxes, shall give to 
the selectmen of the town adjoining, notice of the time and 
place of meeting for such perambulation, ten days before 
the day of meeting. R. S. ch. 37, sec. 4. 

4. If the selectmen whose duty it is to give such notice 
shall neglect to notify as aforesaid, or shall neglect to 
attend agreeably to such notice ; or if the selectmen 
of any town, after being duly notified, shall neglect to at- 
tend ; or if any selectmen shall neglect to cause a record 
of such perambulation to be made and recorded as aforesaid, 
each selectman so neglecting shall forfeit twenty dollars, 
one half for the use of the town whose selectmen have done 



38 OF TOWN LINES. 

their duty, and the other half to the use of such of said se- 
lectmen as shall sue for the same. R. S. ch. 37, sec. 5. 

5. When the selectmen of adjoining towns shall disagree 
in renewing and establishing the lines and bounds of such 
towns, the court of common pleas for the county in which 
the town first incorporated, or (if both were incorporated on 
the same day,) paying the highest tax as aforesaid, is situate, 
upon petition and after notice to the other town interested, 
shall by themselves, or by a committee for that purpose, ex- 
amine said disputed lines, and their decision thereon shall 
be final, and the court may order either or both towns to 
pay the costs, as they may think just. R. S. ch. 37, sec, 6. 

6. The northerly and southerly lines of towns adjoining 
Connecticut river are continued and extended across said 
river to the westerly line of the state, and the west line of 
the state is declared to be the western boundary of such 
towns. jR. S. ch. 37, sec. 1. 

7. The notice to selectmen for the perambulation, may 
be thus : 

The selectmen of the town of 31., to the selectmen of the 
. town of P. 
Gentlemen : The subscribers, selectmen of said M ., being 
the most ancient of said towns, hereby give you notice to 
meet at , on the day of , at 

of the clock in the noon, for the purpose of peram- 

bulating and running the lines between said towns, and re- 
newing the marks and bounds, according to the law of the 
state ; at which time and place, and for which purpose, you 
are hereby requested to attend. 

Dated at said M., this day of 18 , 

A. B. ) 

C. D. } Selectmen of 31. 
E. F.j 

8. The appointment of an agent to perambulate the lines 
may be as follows : 

To S. L., ofM. 

We the subscribers, selectmen of the town of M., by 
virtue of the law of this state, do hereby appoint you to per- 
ambulate and run the dividing lines between said town and 
the town of P., and renew the marks and bounds thereon ; 
and you are to make return of your proceedings into the office 



OF TOWN LINES. 39 

of the town-clerk of said M. as soon as you have completed 
this service. 



Given under our hands this day of , 18 

A. B J 

C. D. } Selectmen of M. 
E.* F. j 



9. The return of such perambulation may be as follows : 

Agreeably to a notice given to the town of M. by the 
town of P., to meet at , on the day 

of , at of the clock in the noon, for 

the purpose of perambulating and running the lines between 
said towns, and renewing the marks and bounds, according 
to law, we the subscribers, selectmen of said towns, met at 
the time and place, and for the purpose aforesaid, and do 
make the following return of our doings : 

We began at the northeast corner of said M. , and the north- 
west corner of said P., at a stone monument marked M. and 
P., which is established as the corner bound : the line then 
runs south ten degrees west, five hundred and twenty rods, 
to a large rock marked also M. and P., &,c. &c. 

In witness whereof we have hereunto mutually set our 
hands, this day of , A. D. 18 . 

A. B., C. D., E. F., Selectmen of M. 
G. H., I. K., L. M., Selectmen of P. 

10. If the perambulation is made by an agent, the return 
may be as follows : striking out the words "selectmen of 
said towns," and inserting instead — the selectmen of said 
M. on the one part, and G. H., duly appointed an agent for 
said P., on the other part. 

11. The appointment of an agent, if any, and the return of 
the perambulation, should be recorded in the record book 
of each town, and the town-clerk should certify at the bot- 
tom of each : " A true copy of the original. Attest : R. 
M., Town-Clerh" 

12. If the parties disagree about the line, the form of a 
petition to the court of common pleas may be as follows : 

To the Honorable Justices of the Court of Common Pleas, 
to be holden at Exeter, in and for the county of Rock- 
ingham-, on the first Tuesday of February next. 

Respectfully represent the subscribers, selectmen of the 



40 OF PROPRIETARY RECORDS. 

town of M., in said county, that on the day 

of last part, pursuant to notice previously 

given, they met the selectmen of the town of P., in 
said county, for the purpose of perambulating the lines 
between said towns, and renewing the marks and bounds 
thereon, but that on such perambulation the said parties did 
and do still disagree in renewing and establishing the lines 
and bounds of said towns : Wherefore your petitioners re- 
quest your Honors to establish said disputed lines, and renew 
the marks and bounds thereon. 

A. B., C. D., E. F., Selectmen of M. 

13. The duty of perambulating lines extends to unincor- 
porated places. R. S. ch. 38, sec. 1. 

14. Selectmen have no authority to alter the lines of towns, 
nor has the court of common pleas, but only to agree or 
decide where the existing line is ; and such agreement or 
decision will be conclusive on the subject. 3 N. H. U. 265. 

15. A mistake in the charter of a township respecting a 
line, cannot be corrected by a court of law in a suit between 
such town and an individual. 5 N. H. R. 280. 

16. The legislature may determine or alter the lines of 
towns at pleasure. 5 N. H. R. 280 ; 3 N. H. R. 532. 



CHAPTER T, 



OF PROPRIETARY RECORDS. 



1. If no proprietors' clerk, re- 
cords to be deposited with 
town-clerks. 

2. If lands lie in more than one 
town, where deposited. 

3. When propriety dissolved. 

4. Town may recall, when. 



5. Penalty for retaining records. 

6. Copies, how certified. 

7. Effect of such copies. 

8. Fees for copies. 

9. Penalty for not making copies. 
10. Penalty for destroying records. 



1. If in any town, having fifty families or more settled 



OF PROPRIETARY RECORDS. 41 

therein, there is no clerk of the proprietors of the common 
lands lying in such town residing therein, the town-clerk 
thereof shall demand and receive the proprietary records of 
any person having the possession thereof, and shall keep 
the same with the records of such town ; and any person 
having possession thereof shall deliver the same to such 
town-clerk. R. S. ch. 143, sec. 17. 

2. If such proprietary records relate to lands lying in 
more towns than one, they shall be deposited in the office 
of the town-clerk of the town first incorporated, or in the 
office of the secretary of state. R. S. ch. 143, sec. 18. 

3. When the propriety of any town in this state is dis- 
solved, or when the meeting of the proprietors of any com- 
mon and undivided lands shall be dissolved, and the clerk 
thereof shall resign, decease or become incapacitated, any 
person, (the town-clerk of any town having fifty or more fam- 
ilies excepted,) having in his possession any record or 
document appertaining to such propriety, shall file and de* 
posit it with the secretary of state, who may demand and 
receive the same. R. S. ch. 143, sec. 19. 

4. Whenever there shall be fifty families in any such 
town, and such town shall vote that the town-clerk shall 
keep such records and documents, or whenever the propri- 
etors shall duly appoint a clerk thereof, the secretary shall 
deliver to such town-clerk, or proprietors' clerk, on demand, 
the records and documents to him belonging, taking his 
receipt therefor. R. S. ch. 143, sec. 20. 

5. If any person shall willfully retain or keep any records 
or documents appertaining to the propriety of any common 
and undivided lands, contrary to the provisions of the four 
preceding sections, he shall forfeit for each offence one 
hundred dollars, to the use of any person who will sue there* 
for, or be punished by fine not exceeding five hundred 
dollars. R. S. ch. 143, sec. 21. 

6. While the records and documents aforesaid are in the 
possession of the secretary of state, or of any town-clerk, he 
shall make out, certify and deliver copies of any part there- 
of, when thereto required, upon the payment or tender of 
the legal fees therefor. R. S. ch. 143, sec. 22. 

7. All copies of the records and documents aforesaid, 
when made and certified as aforesaid, shall be as effectual 
to all intents and purposes as copies by other certifying of* 
fixers. R. S. ch. 143, sec. 23. 



42 OF ACTIONS BY AND AGAINST TOWNS. 

8. The fees for any copies aforesaid shall be the same as 
are by law allowed to clerks of the court of common pleas 
for copies. R. S. ch. 143, sec. 24. 

9. If the secretary of state, or any town or proprietors' 
clerk, shall refuse or neglect, within a reasonable time after 
the payment or tender of his fees therefor, to make out, cer- 
tify and deliver to any person a copy of any such record or 
document in his possession, he shall forfeit one hundred dol- 
lars to any person who will sue therefor, and be liable 
for all damages sustained by such neglect or refusal. 
R. S. ch. 143, sec. 25. 

10. If any person shall willfully destroy any proprietary 
record or document, or shall aid therein, or shall carry or 
aid in carrying any such record or document out of this 
state, he shall be liable for all damages sustained to any 
person injured thereby, and such offence shall be a misde- 
meanor, for which the offender may be indicted and punish- 
ed accordingly. R. S. ch. 143, sec. 26. 



CHAPTER 8. 



OF ACTIONS BY AND AGAINST TOWNS. 



1. Towns are bodies corporate. 

2. Service on town, how made. 

3. Trustee process, liable to. 

4. Thirty days notice given. 

5. Property of town liable. 

6. If no property found, copy of 
execution to be left with se- 
lectmen. 

7. Selectmen to assess tax there- 



8. Neglect of collector, penalty. 

9. If not paid within sixty days, 
remedy. 

10. Contribution, who entitled to. 

11. Powers of selectmen. 

12. Suits for penalty by towns. 

13. May be tried before any jus- 
tice. 

14. Inhabitants may be witnesses. 



for. I 15. Fines to be paid over. 

1. The inhabitants of every town in this state are a body 
politic and corporate, and by their corporate name may sue 
and be sued, prosecute and defend in any court or elsewhere. 
R. S. ch. 31, sec. 1. 



OF ACTIONS BY AND AGAINST TOWNS. 43 

2. Any writ or mesne process against any town may be 
served by giving to the town-clerk, if any there be, or leav- 
ing at his usual place of abode, an attested copy of the writ, 
and by giving to one of the selectmen, if any there be, or 
leaving at his usual place of abode, a like copy ; or if there 
be no town-clerk or selectmen, by giving such copy to one 
of the principal inhabitants, or leaving the same at his usual 
place of abode. R. JS. ch. 183, sec. 8. 

3. A town is liable to be trusteed like an individual, and 
the selectmen are the proper persons to make the disclosure. 

4. Thirty days notice of any suit is to be given to the 
town. R. S. ch. 183, sec. 1. 

5. The goods and estate of towns may be taken on execu- 
tion, and appraised or sold, in the same manner as the prop- 
erty of other corporations. R. S. ch. 198, sec. 1. 

6. If no such goods or estate are found, an attested copy 
of the execution shall be left with one of the selectmen. 
R. S. ch. 198, sec. 2. 

7. The selectmen, upon such copy being so left, shall as- 
sess the inhabitants of such town in a sum sufficient to sat- 
isfy such execution and costs, and collect the same by a col- 
lector by them appointed, within thirty days after. R. S. 
ch. 198, sec. 3. 

8. If the collector to whom any warrant or list of taxes 
shall be committed under this act, shall neglect to collect 
and pay over such taxes to the selectmen, within thirty days 
after he shall receive the same, the selectmen may issue an 
extent against him. Ibid., sec. 4. 

9. If such execution shall not be satisfied within sixty 
days after a copy of such execution is left as aforesaid, such 
execution may be levied upon the goods and chattels of the 
selectmen ; and, if they are insufficient, upon the property 
of any inhabitant of such town, or owner of property situ- 
ate therein. Ibid., sec. 5. 

10. Every person, upon whose property an execution 
against any town has been levied, shall have contribution 
against the other inhabitants or owners of property therein, 
for the sums so levied, and for damages, and shall recover 
double costs. Ibid., sec. 6. 

11. Selectmen are general agents for the town as to pe- 
cuniary matters ; and, unless restricted by a special vote, 
may pay any existing debts of the town, which are of a 
nature requiring immediate payment — 2 N. H. R. 251. 



44 OF ACTIONS BY AND AGAINST TOWNS. 

They may bind the town by note for the support of a pauper, 
whether a suit is commenced or not — 7 N. H. R. 298 ; 
may waive notice of the sums expended by another town — 
3N. H. R. 38; may employ counsel — 14 Maine R. 20; 
and commence or settle suits for the town, unless an agent 
is appointed for the purpose. 

12. When any penalty or forfeiture, or any part thereof, is 
given to any town by any penal statute, the selectmen may 
sue therefor in the name of the town, which shall be entitled 
to the benefit and shall defray the expenses of such prose- 
cution, or the selectmen may remit any such penalty or for- 
feiture. R. S. eh. 211, sec. 5. 

13. Any such prosecution may be brought and tried be- 
fore any justice of the peace of the town, notwithstanding 
the penalty, or a part of it, may belong to such town. R. 
S. ch. 211, sec. 6. 

14. Inhabitants of the town are not disqualified from be- 
ing witnesses in any action in favor of or against such town. 
1 N. H. R. 275 ; 6 N. H. R. 164. 

15. Every justice shall pay over to the town to whom any 
fine or forfeiture belongs every such fine or forfeiture by 
him received, within six months after the receipt of the 
same, on penalty of paying double the amount. R. &. ch. 
222, sec. 12. 



TITLE II 



OF THE ELECTION OF STATE AND COUNTY 
OFFICERS. 

Chapter 9. Of the rights and qualifications of voters. 

Chapter JO. Of the manner of conducting elections. 

Chapter 11. Of the election of governor, counsellor 
and senator. 

Chapter 12. Of the election of representatives in con- 
gress. 

Chapter 13. Of the election of electors of president 
and vice-president. 

Chapter 14. Of the election of county officers. 

Chapter 15. Of the election of representatives to the 
general court. 

Chapter 16. General provisions concerning elections. 



CHAPTER 9 



OF THE RIGHTS AND QUALIFICATIONS OF VOTERS. 



1 . Who is a legal voter. 

2. Who is deemed a pauper. [ 

3. Alien cannot vote. ; 

4. Residence, how long required. 

5. Not lost by temporary ab- 
sence . 

6. Students excluded. 

7. Rights of voters. 

8. " Home" — what constitutes. 



9. " Pauper" — what constitutes. 

10. Computation of time. 

11. " Temporary absence," what. 
V£. "Home," what constitutes. 

13. Same subject. 

14. Intention of voter. 

15. " Pauper," when. 

16. " Home," evidence of. 

17. " Aliens," who are not. 



1. Every male inhabitant of each town, being a native 
or naturalized citizen of the United States, of the age of 



46 OF THE RIGHTS AND 

twenty-one years and upwards, excepting paupers^ and per- 
sons excused from paying taxes at their own request, shall 
have a right, at any meeting, to vote in the town in which 
he dwells and has his home. R. S. ch. 24, sec. 1. 

2. No person shall be considered a pauper, within the 
meaning of the preceding section, unless he has been assist- 
ed as such within ninety days prior to the meeting in which 
he claims the right to vote. R. S. ch. 24, sec. 2. 

3. No alien shall be entitled to vote at any town meeting. 
Ibid., sec. 3. 

4. No person shall be considered as dwelling or having 
his home in any town, for the purpose of voting or being 
voted for at any meeting therein, unless he shall have resid- 
ed within this state six months, and within such town three 
months next preceding the day of said meeting. lb., sec. 4. 

5. When such a residence is acquired by any person in 
any town, it shall not be interrupted or lost by a temporary 
absence therefrom, with the intention of returning thereto as 
his home. Ibid., sec. 5. 

6. No person attending at any college, academy, or other 
literary institution in any town, for the purpose of obtaining 
an education, shall be entitled to vote therein, nor lose his 
right at his former residence. This shall not apply to any 
person who had a previous legal residence in any such town, 
or who has removed and taken up his permanent residence 
therein. Ibid., sec. 6. 

7. Every person qualified as provided in section 1 of 
this chapter, may vote for governor — Constitution of N. H. 
sec. 42 ; for counsellor — Ibid., sec. 60 ; for senator — Ibid., 
sec. 28 ; representatives to the general court — Ibid. sec. 13 ; 
representatives in congress — Constitution U. S. sec. 2; elect- 
ors of president and vice-president, and town officers. 

8. Where a person, having a wife residing in G., went to 
K., and there labored eight months, returning to G. on Sat- 
urday nights, and passing Sundays with his wife, it was 
held that his home was in G. 3 N. H. R. 125. 

9. A person in order to be considered a pauper must 
have been assisted by the town in which he claims the right 
to vote. 

10. In computing time, the day of the meeting is to be 
excluded. R. S. ch. 1, sec. 25. If the meeting is holden 
March 14, the voter must have resided within the state on 
September 13, and in the town on December 13. 



QUALIFICATIONS OF VOTERS. 47 

11. What is a " temporary absence," is a question of 
much practical difficulty. The following points have been 
decided : 

A party, having acquired a home within a town, does not 
lose it by absence for any purpose of a temporary nature, 
with the intention of returning : as by absence ten weeks, 
to do a job of work — 11 Mass. R. 424 ; or absence at col- 
lege— 10 Mass. R. 48S ; or at sea— 4 Mass. R. 312. « If 
a person, having his home in one place, go to another for 
temporary purposes, but with an intention to return, his 
domicil (or home) is not changed by such absence ; nor 
does he acquire a new domicil in the place of such tem- 
porary residence. If a person go on a voyage to sea, or to 
a foreign country for health or pleasure, or business of a 
temporary nature, with an intention to return, no one sup- 
poses his domicil to be changed thereby. But, sometimes, 
when there has been a removal for temporary purposes at 
first, there may be engrafted on it, subsequently, an inten- 
tion of permanent residence. In such cases, length of time 
is a material ingredient. If a person has actually removed 
to another place, with an intention of remaining there for 
an indefinite time, and as a place of present domicil, it be- 
comes his place of domicil, notwithstanding he may have a 
floating intention to go back at some future period." Judge 
Story. 

12. What constitutes a person's " dwelling place or 
home," is also a difficult question to determine. Judge 
Story lays down the following rules : 

"That place is the home, or domicil, of a person, in 
which his habitation is fixed, without any present intention 
of removing therefrom. The question of domicil is often 
one of great difficulty and nicety. It is compounded partly 
of matter of fact and partly of law. It is often a mere 
question of intention ; sometimes of express intention, and 
sometimes of presumptive intention, from acts and con- 
duct. The mere dwelling or residence in a place, is 
not, of itself, sufficient to make it the domicil of the party. 
He must be there with the intention of remaining. The 
act of residence must be coupled with the intention of mak- 
ing it the real, substantial home of the party, excluding all 
others. 

" A person who is of age to choose a domicil for himself 
still retains the paternal domicil while he continues to re- 



48 OF THE RIGHTS AND 

main with his parents. But when he is emancipated, or 
has acquired a domicil of his own, he no longer follows the 
paternal domicil. The domicil of birth easily reverts, 
and it requires fewer circumstances to establish in proof 
that a party has reverted to the domicil of his birth, or fam- 
ily domicil, than to establish a foreign domicil. The place 
where a person lives is, prima facie, taken to be the place of 
his domicil, until other facts establish the contrary. If a 
person removes to another place, with the intention to re- 
main, the latter becomes instantaneously his place of domi- 
cil. It is of no consequence that he has a floating intention 
to return at some future period. 

'* The place where the family of a married man resides is 
generally considered as his domicil ; but this may be con- 
trolled by circumstances. For if the place be only a tem- 
porary establishment for his family, or for temporary pur- 
poses, it may be different. If a married man has his family 
fixed in one place, and does his business in another, the 
former is considered as the place of domicil. If a married 
man has two places of residence at different times of the 
year, that will be esteemed his domicil which Jie selects, 
considers and describes as his fixed home, or which is the 
centre of his affairs, 

" Mere intention to acquire a new domicil, without the 
fact of removal, avails nothing ; neither does the fact of 
removal without the intention to make it a home." 

13. " Dwells and has his home," means some permanent 
abode, or residence, with an intention to remain, or at least 
without any present intention of removing. 3 Grcenleaf 
R. 229. 

14. It will be seen that the intention of the person claim- 
ing the right to vote is material. This intention.to make a 
place his home must exist at the commencement of, and 
during the whole term prescribed by, law. Removal to 
another place within the six months, and a residence there 
of one day, with an intention of remaining, will destroy the 
six months' residence. 

15. In Maine it is decided that if a person has directly 
or indirectly received aid from the town within three months 
of the day of election, whether he has repaid it or not, he 
is not a legal voter ; but if he received such aid more than 
three months before the election, he is a voter, whether he 
owes the town for it or not. 7 Grcenleaf R. 499. 



QUALIFICATIONS OF VOTERS. 



49 



16. If a person votes illegally in one town, it does not 
necessarily deprive him of his vote in another town, where 
he has a legal right ; but it may be considered by the 
selectmen as evidence, coupled with residence, and other 
facts, of his intention to make that other town his home. 
11 Mass. R. 353. 

17. The children of American parents, though born in a 
foreign country, are not aliens, if they return here, and 
claim the rights of citizenship. 



CHAPTER 10. 



OF THE MANNER OF CONDUCTING ELECTIONS. 



List of voters to be posted. 
List, how to be corrected. 
All proper corrections to be 
made. 

List to be open for [examina- 
tion. 

Name must be on list, unless. 
List to be present at meeting. 
Ballot-boxes to be provided. 
What are ballots. 
Moderator to receive votes. 
Votes, several on one ticket. 
Ballots, when deemed blanks. 
Votes, by whom counted. 
Majority, how determined. 
Same subject. 

Votes, how declared and re- 
corded. 

Balloting, when closed. 
Statutes to be present. 
List of rateable polls made. 
Penalty for treating at elec- 
tion. 
Penalty for voting illegally. 



21. Penalty for fraud of select- 
men. 

22. Penalty for fraud of modera- 
tor or selectmen. 

23. Penalty for other offences. 

24. Penalties, how recovered. 

25. Form of list of voters. 

26. List to be corrected before 
used. 

27. What is a " public place." 

28. Duties of selectmen as to list. 
Notice given before name 
erased. 

What is " accidentally omit- 
ted." 

What is a ballot. 
Can minor be elected to office? 

33. Returns must state, what. 

34. List of rateable polls. 

35. Illegal voter liable. 

36. Selectmen or moderator in- 
dictable. 

37. Majority, how determined. 



1. The selectmen shall lodge with the town-clerk, and 



50 OF THE MANNER OF CONDUCTING ELECTIONS. 

shall also cause to be posted up in one or more public places 
in the town, an alphabetical list of all the legal voters therein, 
fifteen days at least prior to any meeting for the choice of 
state or county officers, representatives in congress, or 
electors of president and vice-president. JR. S. chap. 25, 
sec. 1. 

2. The selectmen shall be in session, at some convenient 
place, for so long a time as shall be necessary, within three 
days next preceding any such meeting, for the purpose of 
correcting said list ; and one session shall be for two hours 
at least on the day and before the opening of the meeting. 
Notice of the times and places of holding said sessions shall 
be given upon said lists at the time of posting up the same. 
Ibid., sec. 2. 

3. The selectmen shall hear all applications for the in- 
sertion of the name of any person on said list, or the erasure 
of any name therefrom ; and may examine the party, or any 
witnesses thereto, upon oath, which may be administered by 
any member of the board. They shall insert the name of 
every legal voter omitted, and erase the name of every per- 
son not a legal voter. Ibid., sec. 3. 

4. The list, as corrected by the selectmen, shall, at all 
times before the opening of any meeting, be open for the 
examination of every citizen of the town. Ibid., sec. 4. 

5. No person shall be allowed to vote at any meeting 
aforesaid, unless his name is inserted upon said list before 
the opening of such meeting ; and the vote of no person 
whose name is then upon said list shall be rejected ; provided, 
however, that this section shall not be so construed as to 
prevent any person from voting at any election, whose resi- 
dence has, with the knowledge of the selectmen, been for 
and during the year next preceding the said election, in said 
town, but whose name has been accidentally omitted from 
said list. Ibid., sec. 5. * 

6. The selectmen shall be present at the opening of such 
meeting, and shall have then and there present the list of 
legal voters, corrected as aforesaid. Ibid., sec. 6. 

7. A suitable box or boxes shall be provided by the select- 
men, at the expense of the town, in which to receive the 
ballots of the voters. Ibid., sec. 7. 

8. Each ballot shall contain the name of every person 
voted for, and may be either written or printed. Blank 



OF THE MANNER OF CONDUCTING ELECTIONS. 51 

pieces of paper shall not be counted as ballots, votes or tick- 
ets. Ibid., sec. 8. 

9. Every voter shall deliver his ballot to the moderator, 
in open meeting ; and the moderator, on receiving the bal- 
lot, shall direct the town-clerk to check the name of the 
voter on said list, and shall, without inspecting the name of 
any person voted for, examine said ballot so far only as to 
determine whether the same contains more than one ticket : 
if it do not, he shall place the ballot in the balloting box ; 
but if it do, he shall make it manifest to the meeting, and 
reject the same. Ibid., sec. 9. 

10. In balloting for state and county officers, representa- 
tives in congress, or electors of president and vice-president, 
the moderator shall call for the ballots for so many of said 
officers as it may be necessary to vote for at such meeting, 
to be given in on the same ticket, as a majority of the vo- 
ters present may request or designate, with the respective 
offices designated against the name of each person voted for. 
Ibid., sec. 10. 

11. If several officers are to be voted for upon one ticket, 
no person shall be obliged to vote for each of said officers ; 
and when more than one description of officers is voted 
for on the same ticket, any ticket which does not contain at 
least one vote for each description of officers shall be re- 
garded as a blank vote, as to the description of officers omit- 
ted. Ibid., sec. 11. 

12. The selectmen and town-clerk shall assist the mode- 
rator in sorting and counting said votes, but no other person 
shall in any manner interfere therewith. Ibid., sec. 12. 

13. In determining the result of any election, the whole 
number of persons voting for any officer shall first be ascer- 
tained by counting the whole number of separate tickets 
given in ; and no person shall be deemed to be elected to any 
office who %h all not have received a majority of the whole 
number of tickets given in for such office. Ibid., sec. 13. 

14. If a number of candidates greater than the requisite 
number shall severally receive a majority, a number equal 
to the requisite number having the greatest excess over such 
majority shall be declared to be elected ; but if the number 
to be elected cannot be completed by reason of any two or 
more candidates having received an equal majority, one or 
more being greater than the requisite number, the candidates 



52 OF THE MANNER OF CONDUCTING ELECTIONS. 

having such an equal majority shall be declared not to be 
elected. Ibid., sec. 14. 

15. The moderator shall, in said meeting, in presence of 
the selectmen and town-clerk, sort and count the said votes, 
and make a public declaration of the whole number of the 
tickets given in, with the name of every person voted for, 
and the number of votes for each person, and the town-clerk 
shall make a fair record thereof at large in the books of the 
town. Ibid., sec. 15 ; Const. N. H. sec. 32. 

16. No ballot shall be received and counted after the 
state of the votes shall have been declared as aforesaid. 
Ibid., sec. 16. 

17. The town-clerk shall have present at the polls, at the 
opening thereof, all the statute laws of this state in force 
relating to the subject of elections. Ibid., sec. 17. 

18. Upon the back of the list of voters used at the annual 
meeting, the selectmen shall enter the names of all the 
rateable polls in the town not included in said list, and shall 
file the same with the town-clerk within one week after the 
town meeting. Ibid., sec. 18. 

19. If any person shall, directly or indirectly, give spir- 
ituous liquor to any voter at any time, with a view to in- 
fluence any election, or as a treat for his vote, or for the 
honors bestowed on any candidate at such election, he shall 
be punished by a fine not exceeding twenty dollars for each 
offence. Ibid., sec. 19. 

20. If any person, at any meeting for the choice of offi- 
cers, shall give in more than one vote for any officer voted 
for at such meeting ; or if any person under the age of 
twenty-one years, or any alien not naturalized, or any per- 
son who is not a legal voter, shall give in any vote for any 
officer at such meeting ; or if any person, being under ex- 
amination as to his qualifications as a voter before the board 
of selectmen, shall give any false name or answer, he shall 
be punished by fine not exceeding thirty dollars for each of- 
fence, or may be imprisoned in the common jail not exceed- 
ing six months. Ibid., sec. 20. 

21. If any selectman, at any session hoi den for the cor- 
rection of the list of voters, on receiving satisfactory evi- 
dence that any person whose name is on said list is not a 
legal voter, shall neglect or refuse to erase such name from 
said list, or shall neglect or refuse to insert on said list the 
name of any person who is a legal voter, having satisfactory 



OF THE MANNER OP CONDUCTING ELECTIONS. 53 

evidence thereof, or shall neglect or refuse to hear or exam- 
ine any evidence offered for such purpose, in either of the 
cases aforesaid ; or shall at any time insert on said list the 
name of any person not a legal voter, knowing such to be 
the case ; or shall knowingly erase therefrom or omit to 
insert the name of any legal voter, he shall be punished by 
fine not exceeding fifty dollars for each offence. Ibid., sec. 21. 

22. If any moderator or selectman, at any such meeting, 
shall fraudulently receive and count any illegal vote, or shall 
fraudulently omit to receive and count any legal vote, or 
shall fraudulently embezzle any vote from the number of 
legal votes cast, or add any vote thereto, or shall receive or 
count any vote given at such meeting by proxy, and without 
the personal delivery of such vote by the person entitled to 
give the same, he shall for each offence be punished by 
fine not exceeding fifty dollars. Ibid., sec. 22. 

23. If any person shall be guilty of any offence against 
any provision of this chapter, the penalty for which is not 
herein specified, he shall be punished by fine not exceeding 
thirty dollars for each offence. Ibid., sec. 23. 

24. Fines may be recovered by information filed by the 
attorney general or solicitor, or by indictment by the grand- 
jury, or the offender may be required, on complaint before a 
justice of the peace, to recognize for his appearance at the 
next term of the court of common pleas, to answer to said 
complaint. See ch. 16, sec. 2. 

25. The form of the list of voters, which must be arranged 
alphabetically, may be as follows : 

An alphabetical list of all the legal voters in the town of 
Hampton, in the county of Rockingham, as made out by 
the selectmen the twenty-seventh day of February, 1843. 

A. 
B. 

The selectmen give notice that they will be in session, for 
the purpose of correcting the above list, at , in 

said Hampton, on Saturday, the eleventh day of March next, 
at one o'clock in the afternoon ; and also at the same place, 
on Tuesday, the fourteenth day of March next, from seven 



54 OF THE MANNER OF CONDUCTING ELECTIONS. 

o'clock until nine o'clock in the forenoon, the hour of open- 
ing the town meeting. 



A. B. ) Selectmen 
C. D. \ of 
E. F. J Hampton. 



Hampton, February 27, 1S43. 

26. The list of voters should be corrected before every 
meeting for the choice of officers in which it is required to 
be used, and the date should be altered whenever it is post- 
ed up. 

27. As to what is a "public place," refer to chapter 2, 
* of warning town meetings.' 

28. The selectmen are bound, by their oath of office, to 
insert the name of every legal voter, and erase the name of 
every person not a legal voter, when satisfied of the fact, 
whether any application is made to them for the purpose 
or not, and are liable to a penalty for doing otherwise. 

29. When the name of any person is upon the posted list, 
it should not be struck off without giving him notice, and a 
chance to be heard, unless upon clear and undoubted proof 
that he is not a legal voter. 

30. The liberty of inserting any name " accidentally 
omitted," is intended to apply to the case of well known 
inhabitants omitted by mistake, and not to persons who may 
have resided in the town one year, but were not known to 
the selectmen as legal voters, and whom they did not intend 
to put on the list. 

31. Any ticket having on it the name of one person for 
any office, is a ballot as to such office. In Maine a ballot 
for a person not eligible to the office is considered a blank — 
7 Greenleaf R. 497 ; but in this state it is not settled. 

32. Whether a minor can be legally elected to any office, 
is very doubtful. 2 N. H. R 555: 

33. The record must state how many ballots (or tickets) 
there were for every office, the name of every person who 
received a vote, and how many votes there were for each 
person. This must always be done when the voting is by 
the check-list. To omit any one of these particulars, or to 
record any votes as scattering, or to state the vote of the 
successful candidate only, is an error. For want of proper 
care a very large proportion of the returns are erroneous, 
and mischief frequently happens in consequence. 

34. The making out a list of the rateable polls is dispensed 



OF THE ELECTION OF GOVERNOR, &,C. 



55 



with; by statute all persons on the list of voters are deemed 
to be rateable polls, and the name of " every male inhabit- 
ant, of the age of twenty-one years and upwards," not on 
such list, is to be entered on the back of such list, and the 
whole filed with the town-clerk. R. S. ch. 29, sec. 3. 

35. Any person, not a legal voter, is liable for voting, 
even if his name is on the list of voters, or although he did 
not know what were the qualifications of a voter. 

36. Selectmen are indictable for any fraud or dishonest 
management in regard to the check list ; but fraud and dis- 
honesty must be proved, and will not be presumed. 1 N. H. 
R. 88. This is also true of the moderator. Ibid. 

37. The mode of determining elections prescribed in this 
chapter applies to town as well as state and county officers. 



CHAPTER 11. 

OF THE ELECTION OF GOVERNOR, COUNSELLORS 
AND SENATORS. 



1. Meeting, when holden. 

2. Return of votes, how made. 

3. Return, when to be made. 

4. Receipt therefor to be given. 

5. Penalty for neglect to return. 



6. Form of return for governor. 

7. Form of superscription. 

8. Form of return for counsellor 
and senator. 



1. The meetings of the several towns for the election of 
governor, counsellors and senators, shall be holden on the 
second Tuesday of March annually, and at no other time. 
R. S. ch. 26, sec. 1. 

2. The town-clerk shall make out a fair and exact copy 
of the record of all votes given in at any such meeting for 
governor, for counsellor and for senator, upon distinct and 
separate pieces of paper ; shall certify upon each copy that 
the same is a true copy of said record, and shall seal up 
said copies separately, and direct to the secretary of state, 



56 OF THE ELECTION OF GOVERNOR. 

with a superscription upon each, expressing the purport 
thereof. Ibid., sec. 2. 

3. He shall cause such attested copy to be delivered to 
the sheriff of the county in which such town lies, thirty 
days at least before the first Wednesday of June, or to the 
secretary of state twenty days at least before said first Wed- 
nesday of June ; and the sheriff or his deputy shall deliver 
all such certificates by him received, into the secretary's 
office, twenty days at least before the first Wednesday of 
June. Ibid., sec. 3. 

4. The sheriff, or secretary, upon the receipt of any such 
copy, shall give a receipt therefor, if requested. Ibid., sec. 4. 

5. If any town-clerk or sheriff shall neglect to make any 
return of votes in the manner aforesaid, he shall be punish- 
ed by fine not exceeding one hundred dollars, nor less than 
twenty dollars. Ibid., sec. 5. 

6. The form of the return of votes for governor may 
be thus : 

STATE OF NEW-HAMPSHIRE. 

At a legal town meeting, duly notified and holden at 
Haverhill, in the county of Grafton, on the second Tuesday 
of March, in the year eighteen hundred and forty-three, the 
following votes of the inhabitants of said town, qualified to 
vote for senators, were given in for governor, and were 
received in presence of the selectmen of said town, in open 
meeting, by the moderator thereof, who in said meeting, in 
presence of said selectmen and of the town-clerk of said 
town, sorted and counted said votes, and at the close of the 
poll made a public declaration of the whole number of the 
tickets given in, the name of every person voted for, and 
the number of votes for each person, which was as follows : 

For A. B., One hundred and ten votes. 

For C. D., Ninety-six votes. 

For E. F., Ten votes. 

The whole number of tickets for governor given in at 
said meeting was two hundred and sixteen. 

A true record. R. M., Town-Clerk. 

A true copy of record. Attest: R. M., Town-Clerk. 

The return should be sealed up, and the superscription 
or direction may be thus : 

To the Secretary of the State of New-Hampshire. 

A copy of the record of the votes given in for governor 



ELECTION OF REPRESENTATIVES IN CONGRESS. 



57 



in the town of Haverhill, on the second Tuesday of March, 
1843. 

8. The form of the returns of votes for counsellor and 
senator, and the superscription thereon, may be the same as 
for governor, substituting, " counsellor," or " senator," as 
the case may be, for " governor." 



CHAPTER 12. 



OF THE ELECTION OF REPRESENTATIVES IN CON- 
GRESS. 



1. Meeting, when holden. 

2. Return of votes, how made. 

3. Certificate of election. 

4. Proceedings when no choice. 



5. Return of votes, how made. 

6. Penalty for neglect to return. 

7. Form of return. 

8. Form of superscription. 



1. The meeting for the choice of representatives in 
congress shall be holden on the second Tuesday of March, 
one thousand eight hundred and forty-three, and on the 
second Tuesday of March in every second year thereafter. 
R. S. ch. 27, sec. 1. 

2. The return of votes for representatives in congress 
shall be made out, signed, certified, sealed, directed, trans- 
mitted, receipted for, examined and counted, at the same 
time and in the same manner as is herein before provided 
for the return of votes for senator. Ibid., sec. 2. 

3. If any person shall appear to be elected a representa- 
tive in congress upon such count by a majority of votes, he 
shall be declared to be duly elected ; and the governor 
shall forthwith transmit to such person a certificate of such 
election, signed by himself, countersigned by the secretary, 
and with the seal of the state affixed thereto. Ibid., sec. 3. 

4. If so many persons as are necessary shall not be elected, 
the governor, with advice of the council, shall cause precepts 
to be issued to the selectmen of the several towns, requiring 
them to warn meetings to be holden at the time specified 



58 ELECTION OF REPRESENTATIVES IN CONGRESS. 

in said precepts, for the choice of so many representatives 
as may be necessary to fill such vacancy. Ibid., sec. 4. 

5. The votes given in at any such meeting shall be re- 
ceived, sorted, counted, declared, recorded and certified, 
and the return thereof made out, signed, certified, sealed 
and directed in the manner herein before directed ; and the 
clerk shall transmit the same to the sheriff of the county in 
which such town lies, within ten days after such meeting, or 
shall transmit the same to the office of the secretary of state 
within fifteen days after such meeting; and every such 
sheriff shall transmit to the secretary's office all returns of 
votes by him received as aforesaid, within twenty days after 
said meeting. Ibid., sec. 5. 

6. If any town-clerk or sheriff shall neglect to make any 
return of votes as aforesaid, he shall be liable to the same 
penalty provided for neglect to make returns of votes for 
senator. Ibid., sec. S. 

7. The form of the return may be thus : 

STATE OF NEW-HAMPSHIRE. 

At a legal town meeting, duly holden at Exeter, in the 
county of Rockingham, on the second Tuesday of March, 
in the year eighteen hundred and forty-three, the following 
votes of the inhabitants of said town, present and qualified 
to vote for representatives to the state legislature, were given 
in by ballot for four persons to represent this state in the 
congress of the United States for the term of two years 
from and after the third day of the said month of March, 
and were received in presence of the selectmen of said town, 
in open meeting, by the moderator thereof, who, in said 
meeting, in presence of said selectmen and the clerk of 
said town, sorted and counted said votes, and at the close 
of the poll made a public declaration of the whole number 
of tickets given in, the name of every person voted for, and 
the number of votes for each person, which was as follows : 

For A. B., One hundred votes. 

For C. D., One hundred votes. 

The whole number of tickets given in for representatives 
in congress at said meeting was one hundred. 

A true record: R. M., Toivn-Clerk. 

A true copy of record. Attest : R. M., Town-Cleric. 

8. The form of the superscription may be the same as 
that for governor, substituting the words, representatives in 
the congress of the United States, for "governor." 



59 



CHAPTER 13. 



OF THE ELECTION OF ELECTORS OF PRESIDENT 
AND VICE-PRESIDENT. 



5. PenaltT for neglect to return. 

6. Form of returns of votes. 

7. Form of superscription. 



1. Meeting, when holden. 

2. Return of votes, how made. 

3. Return of votes by sheriff. 

4. Receipt therefor to be given. 

1. The meeting for the choice of electors of president 
and vice-president shall be holden on the first Monday of 
November, one thousand eight hundred and forty-four, and 
on the first Monday of November in every fourth year there- 
after ; and the governor shall seasonably issue precepts to 
the several towns, directing them to warn and hold meetings 
at the time and for the purpose aforesaid. R. S. ch. 28, sec. 1. 

2. The return of votes for electors shall be made out, 
signed, certified, sealed and directed in the same manner 
herein before provided for the return of votes for senator ; 
and the town-clerk shall transmit the same to the sheriff of 
the county within seven days after said meeting, or to the 
office of the secretary of state on or before the last Wed- 
nesday but one of the same month. Ibid., sec. 2. 

3. Each sheriff shall, on or before the said Wednesday, 
transmit to the secretary's office all returns of votes to him 
transmitted as aforesaid. 

4. The sheriff or secretary to whom such returns of votes 
shall be delivered, shall, if requested, give a receipt therefor. 
Ibid., sec. 3. 

5. If any town-clerk or sheriff shall neglect to make re- 
turn of votes in the manner aforesaid, he shall incur the 
same penalty as in case of neglect to return votes for sena- 
tor. Ibid., sec. 10. 

6. The form of the return of votes for electors may be 
thus : 

STATE OF NEW-HAMPSHIRE. 

At a legal meeting of the inhabitants of the town of Lan- 
caster, in the county of Coos, qualified to vote for senator, 
duly warned and holden at said Lancaster on the first Mon- 



60 ELECTORS OF PRESIDENT AND VICE-PRESIDENT. 

day of November, in the year eighteen hundred and forty- 
four, for the purpose of giving in their votes for six persons to 
be electors of president and vice-president of the United 
States : 

A. B. was chosen moderator, to preside at said meeting, 
and took the oath of office prescribed by law. 

And the votes given in for six persons, to be electors as 
aforesaid, by the inhabitants of said town qualified as afore- 
said, were received, in the presence of the selectmen of said 
town, in open town-meeting, by the moderator thereof, who, 
in said meeting, in presence of the said selectmen and the 
clerk of the town, sorted and counted said votes, and at 
the close of the poll made a public declaration of the whole 
number of tickets given in, the name of every person voted 
for, and the number of votes for each person, which was as 
follows : 

For J. B., One hundred votes. 

For N. M., &c, &c, &c. 

[Here insert the name of every person voted for, and the 
number of votes for each.] 

The whole number of tickets given in at said meeting 
was 

A true record. R. M., Town-Clerk. 

A true copy of record. Attest : R. M., Town-Clerk. 

7. The superscription may be thus : 

To the Secretary of the State of New- Hampshire. 

A copy of the record of votes given in the town! of Lan- 
caster, for electors of president and vice-president, Novem- 
ber 3, 1844. 



CHAPTER 14 



OF THE ELECTION OF COUNTY OFFICERS. 



1. Meeting, when holden. 

2. Who are eligible. 

3. Return of votes, how made. 

4. Return of votes, when made. 

1. There shall be chosen, on the second Tuesday of 



5. Penalty for neglect. 

6. Form of return. 

7. Form of direction. 



OF THE ELECTION OF COUNTY OFFICERS. 61 

March annually, by ballot, by the inhabitants of the several 
towns and places in each county qualified to vote for sena- 
tors, a register of deeds, a treasurer and three road com- 
missioners, each of whom shall hold his office until some 
other person is chosen and qualified in his stead. 11. S., ch. 
20, sec. 1. 

2. No person is eligible to the office of register, treas- 
urer or road commissioner, unless he is a resident of the 
county for which he is chosen. No person shall hold any 
two of said offices at the same time ; and the acceptance 
of any office shall be a resignation of any office incompati- 
ble with it. Ibid., sec. 2. 

3. The return of votes given in any town or place for any 
of said officers, shall be made out, signed, certified and sealed 
by the clerk thereof, in all respects as is provided for the re- 
turn of votes for senator. Ibid., sec. 3. 

4. The clerk shall direct such return to the justices of the 
court of common pleas for the county, with a superscription 
expressing the purport thereof, and shall transmit the same 
to said justices on or before the first day of the sitting of 
said court, at the next stated term after the month of March 
in each year. Ibid., sec. 4. 

5. If the clerk of any town shall neglect to make any of 
the returns of votes aforesaid according to law, he shall, for 
each offence, be punished by fine not exceeding fifty dollars 
nor less than twenty dollars, for the use of the county. Ibid., 
sec. 7. 

6. The form of the return of votes for register of deeds, 
county treasurer and road commissioners may be as follows : 

STATE OF NEW-HAMPSHIRE. 

At a legal town meeting, duly notified and holden at 
Francestown, in the county of Hillsborough, on the second 
Tuesday of March, in the year eighteen hundred and forty- 
three, the following votes of the inhabitants of said town, 
qualified to vote for senator, were given in for a register of 
deeds, a county treasurer and three road commissioners, and 
were received in presence of the selectmen of said town, in 
open town meeting, by the moderator thereof, who, in said 
meeting, in presence of said selectmen and of the clerk of 
the town, sorted and counted said votes, and at the close of 
the poll made a public declaration of the whole number of 



62 OF THE ELECTION OF COUNTY OFFICERS. 

tickets given in for each office, the name of every person 
voted for, and the number of votes for each person, as fol- 
lows : 

For Register of Deeds : 

E. B. had one hundred votes. 

J. L. had fifty votes. 

A. W. had one hundred votes. 

For County Treasurer : 

N. B. had one hundred votes. 
D. S. had one hundred votes. 

For Road Commissioners : 

A. B. had votes. 

C. D. had votes. 

The whole number of tickets given in for register of 
deeds was 250. 

The whole number of tickets given in for county treas- 
urer was 200. 

The whole number of tickets given in for road commis- 
sioners was 

A true record. R. M., Town Clerk. 

A true copy of record. Attest : R. M., Town-Clerk. 

7. The return should be sealed up, and directed thus : 

To the Clerk of the Court of Common Pleas for the Coun- 
ty of Hillsborough. A copy of the votes given in the 
town of Francestown, for register of deeds, county treas- 
urer and road commissioners, March 14, 1843. 



63 



CHAPTER 15. 



OF THE ELECTION OF REPRESENTATIVES TO THE 
GENERAL COURT. 



Of towns not classed. 

1. Meeting, when to be holden. 

2. Certificate of election. 

3. Who are rateable polls. 

4. Town specially authorized, 

duty. 

5. List of such towns. 

Of the elections in classed towns. 

6. Meeting, when to be holden. 

7. Meeting, how warned. 

8. Warrant, how served and re- 

turned. 

9. List of voters to be posted. 

10. Lists, how corrected. 

11. Copy of list furnished. 

12. Proceedings at such meeting. 



13. Clerk pro tern, chosen. 

14. Penalty for neglect of duty. 

15. List of classed towns. 

General Rules. 

16. Form of certificate of election 
in towns not classed. 

17. Who are rateable polls. 

18. Form of warrant for meeting 
in classed towns. 

19. Form of return thereon. 

20. Certificate on check list. 

21. Form of certificate of elec- 
tion in classed towns. 

22. Form of certificate when 
elected at adjourned meeting. 



OF TOWNS NOT CLASSED. 

1. The meeting for the election of representatives to the 
general court, in towns not classed, shall be holden on the 
second Tuesday of March annually ; but if the election of 
the requisite number shall not be effected on that day, the 
meeting may be adjourned to, and the election of the num- 
ber deficient made on the following day, but not afterwards. 
R. S., ch. 29, sec. 1. 

2. The certificate of election shall be made out, certified 
and signed in the same manner as the return of votes for 
governor; and the town-clerk shall also certify that the check 
list was duly posted up and used during the balloting on 
which such representative was chosen ; the number of rate- 
able polls in such town, and the number of voters upon the 
check list, as corrected on the day of such annual meeting. 
Ibid., sec. 2. 

3. In determining the number of representatives to which 
any town is entitled, every male inhabitant of the age of 
twenty-one years and upwards shall be considered a rateable 
poll. Ibid., sec. 3. 



64 OF THE ELECTION OF REPRESENTATIVES 

4. The clerk of every town specially authorized to send 
a representative to the general court, shall note on the mar- 
gin of the certificate of election the time when such author- 
ity was given. Ibid., sec. 4. 

5. Each of the following towns and places, not having 
the constitutional number of rateable polls, may send a rep- 
resentative to the general court until otherwise ordered, 
viz : Greenland, Newtown, Hampton-Falls, Centre-Harbor, 
Temple, Brookline, Middleton, Atkinson, South-Hampton, 
East-Kingston, Newington, Madbury, Allenstown, Poplin, 
Brookfield, Litchfield, Sharon, Gilsum, Roxbury, Surry, 
Sullivan, Langdon, Benton, Hebron, Orange and Dalton. 
Ibid., sec. 5. 

OF THE ELECTION IN CLASSED TOWNS. 

6. The meeting for the election of the representative of 
any classed towns may be holden on any day in March ex- 
cept the second Tuesday thereof. Ibid., sec. 6. 

7. Such meeting shall be called by warrant, under the 
hands and seal of the selectmen of the town wherein the 
meeting is by law to be holden for that year, requiring the 
inhabitants of said classed towns, qualified to vote for sena- 
tors, to meet at a certain place in said town, and at a certain 
time therein mentioned, and expressing the purpose of such 
meeting. Ibid., sec. 7. 

8. The selectmen shall post up an attested copy of such 
warrant at some public place in each of said towns, fifteen 
days at least before such meeting, and return such warrant, 
with their doings thereon, at the time and place of meeting. 
Ibid., sec. 8. 

9. The selectmen of the town wherein such meeting is 
by law to be holden, shall lodge with the clerk thereof, and 
cause to be posted up at some public place in said town, 
at least fifteen days previous to said meeting, an alpha- 
betical list of all the legal voters of said town, and shall, at 
said meeting, enter on said list the name of every legal 
voter which shall be upon the list of voters of any town 
classed therewith. Ibid., sec. 9. 

10. The selectmen of each classed town shall hold ses- 
sions for the correction of the list of voters, in the manner 
hereinbefore provided for other towns, giving at least seven 
days' notice thereof; but no session shall be holden for such 



TO THE GENERAL COURT. 



65 



purpose on the day of election, except in the town in which 
such election is to be holden. Ibid., sec. 10. 

11. An attested copy of the check list, as corrected by 
the selectmen of each classed town, shall be filed by them 
with the town-clerk of the town in which such meeting is 
to be holden, before the opening of such meeting, or, in his 
absence, with one of the selectmen. Ibid., sec. 11. 

12. At such meeting a moderator shall be chosen ; and 
said moderator, and the selectmen and clerk of the town 
wherein such meeting is holden, and the legal voters of each 
town present, shall have the same rights and powers, perform 
the same duties, and be subject to the same liabilities and 
penalties, as if such meeting were a legal meeting of the 
inhabitants of one town only. Ibid., sec. 12. 

13. If there shall be no clerk of the town in which such 
meeting is to be holden, or in case of his absence, the legal 
voters of such town present shall choose a clerk of the 
meeting, who shall be sworn, and shall perform the duties by 
law required of town-clerks in town meetings ; shall keep a 
fair record of all the proceedings of the meeting, and shall 
transmit the same, duly certified, to the clerk of said town, 
as soon as one shall be elected, who shall record the same 
in the book of records of the town wherein such meeting 
is holden. Ibid., sec. 13. No person can vote for town- 
clerk except legal voters of the town in which the meeting 
is holden. 

14. If any selectman or town-clerk shall neglect to per- 
form any duty required of him by this chapter, he shall be 
punished by fine not exceeding fifty dollars. Ibid., sec. 14. 

15. The following towns and places, not having the con- 
stitutional number of rateable polls each, are hereby classed 
for the election of representatives to the general court, in 
the following manner, and each class may send one repre- 
sentative annually, viz. : 

Carroll, Nash and Sawyer's Location, Hart's Location 
and Crawford's Grant ; 

Jackson and Pinkham's Grant; 

Pittsburg, Clarksville, Dixville, Millsfield and Errol ; 

Franconia and Lincoln ; 

Berlin, Gorham and Shelburne ; 

Randolph and Jefferson ; 

Northumberland and Stratford ; 

Milan, Stark and Dummer ; 

F* 



66 OF THE ELECTION OF REPRESENTATIVES 

Danville and Sandown ; 
Bennington and Windsor ; 
Albany and Chatham ; 
Woodstock and Ellsworth. 

16. The form of the certificate of election in towns not 
classed may be thus : 

STATE OF NEW-HAMPSHIRE. 

At a legal town meeting, duly notified and holden at 
Portsmouth, in the county of Rockingham, on the second 
Tuesday of March, in the year eighteen hundred and forty- 
three, the alphabetical list of all the inhabitants of said town 
qualified to vote for senators, having been lodged with the 
clerk of said town, and posted up at the town-house in said 
town fifteen days prior to said second Tuesday of March, 
and the name of each voter having been checked by the 
town-clerk on said list during the balloting, the votes of the 
inhabitants of said town, qualified as aforesaid, given in 
for representatives to represent said town in the general 
court of said state, were received in the presence of the 
selectmen, in open town meeting, by the moderator 
thereof, who, in the presence of said selectmen and of the 
clerk of said town, sorted and counted the same, and at the 
close of the poll made a public declaration of the whole num- 
ber of tickets given in, the name of every person voted for, 
and the number of votes for each person, which were as 
follows : 

A. B. had six hundred votes. 

C. D. had six hundred votes. 

The whole number of tickets for representatives given in 
was 

And the said A. B. and C. D., having a majority of all 
the tickets given in, were declared by the moderator to be 
elected representatives of said town for the ensuing year. 

R. M., Town-Clerk. 
A true copy of record. Attest : R. M., Toion-CIerk. 

I hereby certify that the selectmen of said town have filed 
with the town-clerk thereof, agreeably to the provisions of 
chapter 25, section 18, of the Revised Statues, the list of 
voters used at the annual meeting, with the names of all the 
rateable polls in said town not included in said list written 
upon the back thereof. The whole number of voters in said 




TO THE GENERAL COURT. 67 

list is , and the whole number of rateable polls in 

said list, and upon the back thereof, is 

R. M., Town-Clerk. 

17. In the list of rateable polls is to be included " every 
male inhabitant, of the age of twenty-one years and up- 
wards ;" this embraces aliens, paupers, persons over seventy 
years of age, persons non compos, and persons who have 
not acquired a right to vote by residence. 

18. The form of a warrant for a meeting for the election 
of a representative for classed towns may be as follows : 

STATE OF NEW-HAMPSHIRE. 

To the inhabitants of the towns of Danville 
and Sandown, in the county of Rocking- 
nS ^y ham, in said state, qualified to vote for 
senator : 

You are hereby notified to meet at the meeting-house in 
said Danville, on Thursday, the sixteenth day of March in- 
stant, at nine of the clock in the forenoon, to act upon the 
following subjects : 

1. To choose a moderator to preside in said meeting. 

2. To choose a representative to represent said towns in 
the legislature for the ensuing year. 

Given under our hands and seal, at Danville, this first day 
of March, eighteen hundred and forty-three. 
P. G. \ 

E. H. > Selectmen of Danville- 
N. L. ) 

19. The form of the selectmen's return on said warrant 
may be thus : 

Danville, March 16, 1843. We hereby certify that we 
posted up an attested copy of the within warrant at the 
meeting-house in said Danville, and a like attested copy at 
the tavern of G. R., in said Sandown, being public places 
in said towns, on the first day of March, 1843. We also 
on said day lodged with the town-clerk of said Danville 
an alphabetical list of all the legal voters of said town, and 
also posted up at said meeting-house a like list, which we be- 
lieve to be correct. 

P. G. 

E. H. \ Selectmen of Danville. 

N. " 



G. ) 



68 OF THE ELECTION OF REPRESENTATIVES. 

20. The copy of the check list, as corrected by the se- 
lectmen, should be certified as such by them, and filed with 
the town-clerk of the town in which the meeting is to be 
holden. The attestation may be as follows : 

The foregoing list is a true copy of the list of legal vot- 
ers in the town of S., as corrected by us this day. 

H. M. \ 

L. P. > Selectmen of S. 
G. R. ) 
S. , March 15, 1843. 

21. The form of the certificate of election may be as follows: 

At a legal meeting of the inhabitants of the towns of 
Danville and Sandown, qualified to vote for senator, duly 
notified, holden at Danville, in the county of Rockingham, 
on the sixteenth day of March, in the year eighteen hundred 
and forty-three, for the choice of a representative to repre- 
sent said towns in the legislature of this state, an alphabeti- 
cal list of all the inhabitants of said Danville, qualified to 
vote for senator, having been lodged with the clerk of said 
town, and posted up at the meeting-house in said town fifteen 
days prior to said sixteenth day of March, and an attested 
copy of the list of the legal voters in said Sandown, qualified 
as aforesaid, as corrected by the selectmen of said Sandown, 
having been filed with the town-clerk of said Danville be- 
fore the opening of said meeting, and all the names thereon 
entered upon the list of voters of said Danville, and the 
name of each voter having been checked by the town- clerk 
on said list during the balloting, the votes of the inhabitants 
of said Danville and Sandown, qualified as aforesaid, given 
in for a representative to represent said towns in the general 
court of said state were received — (Here copy the form of 
a certificate for a town not classed, after the words " were 
received") 

The certificate should state the number of voters, and the 
number of polls in each of the classed towns. 

22. The form of the certificate, where no choice is effected 
on the first day, may be thus. Copy the form before given, 
down to the words, " And the said A. B. and C. D. having a 
majority," &c, &,c, which are to be omitted, and insert 
instead : 

And no person having a majority of all the tickets given 
in, it was declared by the moderator that there was no 



GENERAL PROVISIONS CONCERNING ELECTIONS. 



69 



choice : Whereupon it was Voted, that this meeting stand 
adjourned until to-morrow morning at nine o'clock, and it 
was adjourned accordingly. 

And at the time and place of adjournment aforesaid, the 
inhabitants of said town being met for the purpose of filling 
such vacancy, the name of each voter having been checked 
by the town-clerk on said list of voters during the balloting, 
(Here copy the rest of the other form.) 



CHAPTER 16 



GENERAL PROVISIONS CONCERNING ELECTIONS. 



8. Money lost may be recovered. 

9. Fees for return of votes. 

10. Penalty for making any false 
record, copy or return. 

11. Blanks to be furnished. 

12. Records and copies to be sign- 
ed by recording officer. 

13. Oath of office essential. 

14. Voters not liable to arrest. 



1. Neglect to return votes, how- 
prosecuted. 

2. Penalties, how recovered. 

3. Limitation of prosecutions. 

4. Town-clerk maybe required to 
correct his record or return. 

5. Penalty for neglect to amend. 

6. Penalty for betting on elec- 
tion. 

7. Whatsis a bet or wager. 

1. The secretary of state shall, within thirty days after 
any default in the return of votes, certify the same to the 
solicitor of the county, which certificate shall be prima facie 
evidence of such default, and the solicitor shall prosecute 
every person guilty of such default. R. S., ch. 30, sec. 1. 

2. All fines and penalties accruing under the seven pre- 
ceding chapters, for any default or offence, may be recov- 
ered by indictment or information, and shall be appropriated 
one half to the use of the prosecutor, and the other half to 
the use of the county. Ibid., sec. 2. 

3. No prosecution shall be sustained unless commenced 
within one year after the commission of the offence. Ibid. , 
sec. 3. 

4. If the clerk of any town or place shall make an in- 
correct or insufficient record or return, of the votes given 



70 GENERAL PROVISIONS CONCERNING ELECTIONS. 

therein at any meeting for any of the officers aforesaid, the 
tribunal by whom said votes are opened and counted may 
require said clerk, at his own expense, to come in and amend 
said record or return, according to the facts of the case. 
Ibid., sec. 4. 

5. If any clerk shall neglect or refuse to appear and amend 
as aforesaid, he shall be punished by a fine of fifty dollars, 
to be recovered by indictment or information in the county 
in which such delinquent resides, lb id. , sec. 5. 

6. If any person shall make or accept any bet or wager 
of money, goods, or property of any kind whatever, upon 
any election for any public officer, or upon the event or re- 
sult of such election, or upon any of the proceedings there- 
of; or if any person shall receive any money, goods, or 
other thing, the same having been won upon any such bet 
or wager, he shall forfeit and pay a sum equal to double the 
amount of the money or value of the goods or property so 
received, bet or wagered, to the use of the person who first 
sues therefor. Ibid., sec. 6. 

7. Any contract or agreement made or entered into for 
the purchase, sale, loan, or use of any money, or property, 
real or personal, the terms of which are made to depend 
upon, or are to be varied or affected by, any such election, 
or by the event or result thereof, or of any of the proceed- 
ings thereof, shall be deemed to be a bet or wager within 
the meaning of this chapter. Ibid., sec. 7. 

8. If any person shall receive any money or property, 
won by him upon any bet or wager as aforesaid, he shall be 
liable therefor to the person losing the same, in an action of 
assumpsit, trover, or other form proper to recover the same. 
Ibid., sec. 8. 

9. The fees of sheriffs for the return of votes to the sec- 
retary of state shall be ten cents per mile travel each way 
from the place of their residence to the capitol in Concord, 
estimating toll-bridges as three miles travel each, but allow- 
ing only one travel for all returns made annually ; and the 
secretary, on proper evidence thereof, may pay the same, 
and present his account thereof to the governor, who shall, 
by and with the advice and consent of the council, draw his 
warrant on the treasurer therefor. Ibid., sec. 9. 

10. If the clerk of any town or place shall willfully and 
corruptly make a false record of any vote or other proceed- 
ing in any legal town meeting, or any false copy of any re- 



GENERAL PROVISIONS CONCERNING ELECTIONS. 71 

cord, or any false certificate or return of votes, he shall be 
punished by solitary imprisonment not exceeding six months, 
and by confinement to hard labor not less than two nor more 
than five years. R. S., ch. 217, sec. 18. 

11. The secretary of state shall prepare and distribute to 
every town, blanks for the returns of state and county offi- 
cers, representatives in congress and electors, which shall 
be used by town-clerks in making returns. They will be 
sent to the office of the register of deeds for the county. 
R. 5., ch. 11, sees. 2 and 3. 

12. Every record or return, and every copy of either, 
made by the town-clerk, or by any recording officer, should 
be signed by him ; a record not signed is of no avail. 

13. No person, chosen or appointed to any public office 
under any law of this state, shall exercise such office, or shall 
perform any act therein, until he shall have taken the oath 
of office therefor. R. S.,ch. 15, sec. 4. 

An affirmation may be administered instead of an oath. 

14. No person entitled to vote at any town meeting shall 
be liable to arrest on civil process on the day on which such 
meeting is held. R. S., ch. 185, sec. 2. 



TITLE III. 



OF THE ASSESSMExNT AND COLLECTION OF 
TAXES. 



Of persons and property liable to taxation. 

Where and to whom persons and property 
shall be taxed. 

Of the annual invoice of polls and taxable 
property. 

Of the appraisal of taxable property. 

Of the assessment of taxes. 

Of the abatement of taxes. 

Of the collection of taxes of residents. 

Of the collection of taxes of non-residents. 

Of the state and county tax, and the sur- 
plus revenue. 

General provisions concerning the assess- 
ment and collection of taxes. 

Of extents. 



Chapter 


17. 


Chapter 


18. 


Chapter 


19. 


Chapter 20. 


Chapter 21. 


Chapter 


22 


Chapter 


23. 


Chapter 24, 


Chapter 25 


Chapter 26 


Chapter 


27 



CHAPTER 17 



OF PERSONS AND PROPERTY LIABLE TO TAXATION. 



] . Polls, when taxable. 

2. Real estate, when taxable. 

3. Personal estate, when taxable: 

I. Stock in public funds ; 

II. Stock in corporations ; 

III. Money on hand and at 
interest ; 

IV. Stock in trade ; 

V. Carriages ; 



VI. Horses, asses and mules; 

VII. Neat cattle; 

VIII. Sheep. 

4. Rail roads, how taxed. 

5. Tax, how distributed. 

6. Stockholders, list of furnished. 

7. Rules for taxation. 

8. ''Insane," meaning of word. 

9. " Stockholders," evidence of. 



1. All male polls, from 21 to 70 years of age, are liable 

G 



74 Persons and property 

to be taxed, except paupers and insane persons. R. S., 
ch. 39, sec. 1. 

2. All real estate, [except houses of public worship, school 
houses and seminaries of learning, and property of the state 
and county,] whether improved or unimproved, and whether 
owned by residents or others, is liable to be taxed ; build- 
ings, mills, carding machines, factory buildings and machin- 
ery, wharves, ferries, toll-bridges, locks and canals, shall, 
for the purposes of taxation, be deemed real estate, lb., sec.2. 

3. Personal property liable to be taxed is : 

I. Stock in public funds ; 

II. Stock in all corporations in this state except man- 
ufacturing and rail-road corporations, and stock in any 
corporation out of the state, if not there assessed ; pro- 
vided a dividend or income is or may be derived from 
said stock, and notwithstanding said stock is mortgaged, 
pledged, or otherwise conveyed as security ; 

III. Money on hand or at interest, more than the 
owner pays interest for ; including money deposited in 
any bank or savings institution, or loaned on any mort- 
gage, pledge, obligation, note or other security whatever, 
whether on interest, or interest be paid or reserved in 
advance ; 

IV. Stock in trade, whether of merchants or shop- 
keepers, mechanics or tradesmen, employed in their trade 
or business, reckoning the same at the average value 
thereof for the year ; all raw materials and manufactures 
of any manufactory, and all wood, timber, logs and lum- 
ber, manufactured or otherwise, exceeding fifty dollars in 
value, shall, for the purpose of taxation, be deemed stock 
in trade ; 

V. All carriages exceeding fifty dollars in value ; 

VI. All horses, asses and mules, over eighteen months 
old; 

VII. All oxen, cows and other neat stock, over eighteen 
months old ; 

VIII. All sheep over six months old. Ibid., sec. 3. 

4. Every rail-road corporation shall pay into the treasury 
of the state, on or before the second Wednesday of June 
annually, one per cent, on the value on the first day of Jan- 
uary preceding, of that part of its capital stock expended 
within this state, to be determined by the certificate of the 
justices of the superior court. Ibid., sec. 4. 



LIABLE TO TAXATION. 75 

5. The treasurer of said state shall assign and distribute, 
in the month of June annually, all sums so received by him, 
in the following manner : 

I. To the several towns in which any rail-road may be 
located, one fourth of said one per cent, paid by said rail- 
road corporation ; each town to receive in proportion to 
the capital stock expended therein for buildings and the 
right of way ; 

II. To the several towns in which stock in any rail- 
road shall have been owned on the first day of the April 
next preceding, three fourths of the one per cent, paid by 
said corporation on the stock owned in such town, on re- 
ceiving from the selectmen thereof satisfactory evidence 
that the same was owned in said town on said first day of 
April ; said three fourths of one per cent, to be, by the 
selectmen of the town receiving the same, appropriated 
in just proportion to the several purposes for which taxes 
are assessed upon the polls and estates of such stock- 
holders in such town ; 

III. The remainder for the use of the state. 

6. It shall be the duty of the agent of every such rail- 
road corporation to transmit to the treasurer of the state, on 
or before the first day of June annually, a certified state- 
ment of the number of shares in such corporation owned in 
each town in this state on the first day of April annually, 
and by whom owned, and such other information as may be 
required to carry out the provisions of this and the two pre- 
ceding sections. Ibid., sec. 6. 

7. Property in this state is taxed specifically ; therefore 
no property is liable to be taxed, unless it is included in the 
foregoing classes. This chapter states merely what property 
is taxable ; the next states where and to whom it is taxable. 

8. The word "insane" includes an idiot, a non compos, 
lunatic or distracted person. R. S., ch. 1, sec. 15. 

9. The certificate of the agent of the rail-road corporation, 
required by section 6, will probably be " satisfactory evi- 
dence" to the state treasurer, under section 5, for the pay- 
ment from the state treasury of the proportion due to the 
several towns on stock owned therein, except where it is 
pledged or conveyed as security, in which cases the affidavit 
of the parties may be required. 



76 



CHAPTER 18 



WHERE AND TO WHOM PERSONS AND PROPERTY 
SHALL BE TAXED. 



1. Inhabitants, who are deemed. 

2. Students at literary institu- 
tions. 

3. Persons removing from town. 

4. Stock in corporations. 

5. Property of manufacturing 
and other corporations. 

6. Animals and stock in trade 
kept in any town, there taxed. 

7. Property taxed to the person 
in possession. 

8. Person in possession refusing, 

how taxed. 

9. If no one in possession, how 
taxed. 

10. Unimproved lands of non-res- 
idents. 
Estates of persons deceased 



Estates 
funds. 



of wards, and trust 



13. Persons believed to be inhabit- 
ants to be assessed. 

14. When taxes of such to be 
abated. 

15. Lien and remedy of persons 

taxed for property of others. 

16. Keeper of stud-horse to give 

security for tax. 
17 Penalty for refusal. 

18. General rules for taxation. 

19. " Real estate," where taxed. 

20. Rail-road corporations, how 

taxed. 

21. Manufacturing companies, 
how taxed. 

22. " Stock" in Massachusetts, 

how taxed. 

23. " Toll bridges," how taxed. 

24. Shares, when to be taxed. 

25. " Inhabitant," who is such. 



1. Every person shall be taxed in the town, in which he 
is an inhabitant or resident on the first day of April, for his 
poll and estate, except in cases otherwise provided for by 
law. R. S., ch. 40, sec. 1. The word " inhabitant" may be 
construed to mean a resident, or person dwelling and having 
his home. R. S:, ch. 1, sec. 5. For a fuller explanation of 
its meaning, see ante, ch. 9. 

2. Residence in any town merely for the purpose of ob- 
taining an education at any literary institution, shall not 
subject the person so residing to taxation in such town. 
Ibid. ■, sec. 2. Bat if he had a former residence in such 
town, or has removed and taken up his permanent residence 
therein, he is not exempted. See ch. 9, sec. 6. 

3. In case any person shall remove from town on or after 
the first day of April, he shall pay his taxes that year in the 
town from which he removed. Ibid., sec. 3. 

4. Stock in banks, insurance and other corporations, 
except rail-road and manufacturing corporations in this 



TAXATION WHERE AND TO WHOM. 77 

state, shall be taxed to the owner thereof, in the town in 
which he resides, if in this state ; otherwise to the corpora- 
tion in the town in which its principal office or place of busi- 
ness in the state shall be kept. Ibid., sec. 4. To know what 
stocks are to be taxed, see ch. 17, sec. 3, clause 2. For the 
mode of appraisal, see ch. 20, sec. 1. 

5. Taxable property of manufacturing corporations in 
this state, and property taxable to any other corporation, 
shall be taxed to such corporation by its corporate name, in 
the town or place in which it is situate, except in cases 
where other provision is made. Ibid., sec. 5. 

6. All animals liable to be taxed kept in any town, and 
all stock in trade employed in any town, owned by any per- 
son not resident therein, shall be taxed in such town, to the 
owner or person having the care thereof on the first day of 
April, whether such person be a resident in town or not. 
Ibid., sec. 6. To know what is included in " stock in trade," 
see ch. 17, sec. 3, clause 4. 

7. All real and personal property shall be taxed to the 
person claiming the same, or to the person who is in the 
possession and actual occupancy thereof, provided such per- 
son will consent to be taxed for the same ; but such real 
estate shall be taxed in the town in which it is situate. Ibid., 
sec. 7. As to what is included in " real estate," see ch. 17, 
sec. 2. 

8. If any person, not the owner, shall be living on any 
farm, or in any house, on the first day of April, and shall 
refuse to be taxed for it, the same shall be taxed as resident 
by the number of the lot, or such other description as it is 
commonly known by, with the name of the occupant, as such ; 
and all property so taxed shall be holden and liable to be 
sold in the same manner that the real estate of residents is 
holden and sold for taxes. 

9. If no person shall be in possession or occupation of 
any buildings deemed by the selectmen to be tenantable, or 
of any other real estate improved as pasture, mowing, ara- 
ble or otherwise, the same shall be taxed as non-resident by 
such description as it may be readily known by, with the 
name of the owner, if known. Ibid., sec. 9. 

10. Unimproved lands of non-residents shall be taxed in 
the name of the owner, if known ; otherwise in the name 
of the original proprietor, if know^n ; otherwise without any 
name, and by the number of lot and range, if lotted, and 

g* 



78 WHERE AND TO WHOM 

the quantity thereof, or by such other description as it may 
be readily known by. Ibid., sec. 10. 

11. Estates of persons deceased may be taxed to the 
widow, any of the children, heirs or other person, who will 
consent to be considered as in possession thereof; otherwise 
to the heirs generally of such deceased person. Ibid., sec. 
11. By " consent" is understood an agreement that the 
property may be so taxed. Without such agreement it should 
be taxed ' To the Heirs of A. B., deceased.' 

12. The real and personal estate of any legatee or ward, 
and all taxable property held in trust, shall be assessed to the 
administrator, trustee or guardian, or other person holding 
such property in trust ; the real estate in the town in which 
it is situate, and the personal estate in the town in which 
such administrator, trustee or guardian may reside, if in the 
state ; otherwise in the town in which such legatee, ward, 
or person beneficially interested shall reside ; provided, 
however, that stock and all goods and chattels shall be taxed 
in the town in which they are kept. Ibid., sec. 12. Such 
property is in all cases to be taxed to the administrator, 
guardian or person holding the same in trust ; if he lives 
within the state, the personal property is to be taxed to him 
in the town in which he lives ; if he lives out of the state, it 
is to be taxed to him in the town in which the legatee, ward 
or person beneficially interested lives. By " reside," is prob- 
ably meant, lias Ms dwelling place or home. By " stock and 
all goods and chattels," is probably meant " animals," and 
'* stock in trade," specified in sec. 6, of this chapter. 

13. The selectmen shall assess all persons whom they be- 
lieve to be inhabitants of the town on the first day of April. 
If any person so assessed shall tender to the selectmen his 
affidavit, stating that before the first day of April he had re- 
moved from said town, and become an inhabitant of any 
other specified place, and answer such interrogatories under 
oath as the selectmen may propose relative to his residence, 
they may suspend the collection of such tax. Ibid., sec. 13. 
As to who are inhabitants, see sec. 1, of this chapter. 

14. If the person so assessed and examined shall, within 
one year from said first day of April, produce to said select- 
men the certificate, under oath, of the selectmen of any 
other town, that he was assessed in that town as an inhabit- 
ant, and how much, and has paid the tax, and that the 
same is the legal tax for the year upon his poll and whole 



PERSONS AND PROPERTY SHALL BE TAXED. 79 

estate, the first mentioned tax may be abated, otherwise it 
shall be collected. Ibid., sec. 14. If the assessment was 
illegal, the selectmen would nevertheless be liable ; but they 
may abate the tax in any case. Ck. 22, sec. 1. 

The form of the selectmen's certificate may be as follows : 

To whom it may concern : This certifies that A. B. was, in 
our opinion, a legal inhabitant of the town of C, in the 
county of R., on the first day of April, A. D., 1843 ; that 
he was assessed in said town as an inhabitant in the sum 
of dollars, cents; that said sum is the legal tax 

for the year upon the poll and whole estate of said A. B., and 
that he has paid the same. G. H., 






L. P., > Selectmen of C. 
N. O., j 

R , ss., May 1, 1843. Then personally appeared 

the said G. H., L. P. and N. O., selectmen of the town of 
C, and severally made oath that the foregoing certificate by 
them signed is in their belief true. Before me, 

P. D., Justice of the Peace. 

15. Any person or corporation to whom any tax may be 
legally assessed upon the property of any other person or 
corporation, shall have a lien upon such property, and the in- 
come or dividends thereof, until such tax is repaid to them ; 
shall be allowed the same upon settlement of their accounts, 
and shall have a right to recover the same against the owner 
by action for money paid to his use. Ibid., sec. 15. 

16. The selectmen shall appraise and assess, in all taxes 
of the year, every stud horse or ass which shall be kept in 
the town for the use of mares at any time after the first day 
of April, and may require the owner, or person having the 
care of such animal, to give security, to their satisfaction, 
to pay such taxes, or produce satisfactory proof, within thirty 
days, that such animal has been duly taxed in some other 
town in this state. Ibid., sec. 16. This maybe done after 
the taxes are made, and a warrant therefor issued to the col- 
lector. 

17. If the owner, or person having the care of such horse 
or ass, shall neglect or refuse to give such security upon re- 
quest, he shall forfeit three times the amount of the tax so 
assessed, for the use of the town. Ibid., sec. 17. 

18. This chapter provides for the place where and the per- 



80 TAXATION WHERE AND TO WHOM. 

sons to whom property is to be taxed ; the preceding chapter 
states what property is liable to be taxed, and no property is 
to be taxed unless expressly mentioned in that chapter as 
taxable. For the mode of appraisal, see ch. 20. 

19. Real estate, when liable to be taxed at all, is in all 
cases to be taxed in the town in which it is situate. 

20. Rail-road corporations, lying in this state, paying one 
per cent, into the state treasury, no property owned by 
them, nor any stock therein, is liable to be taxed again. 
Stock in rail-roads lying out of the state, if owned by in- 
habitants of this state, is liable to be taxed, if not assessed 
in the state in which such road lies. 

21. Manufacturing corporations in this state are taxed for 
all their property, either as " real estate" or "stock in trade." 
Ch. 17, sees. 2, 3. Stock in such corporations is not, there- 
fore, to be taxed. Ibid., sec. 3. But stock in manufactur- 
ing companies, situate out of the state, owned by inhabitants 
of this state, is taxable here if not assessed there. 

22. " Stock in all monied corporations" in Massachusetts 
is there liable to taxation. Mass. R. S., ch. 7, sec. 4. 

23. Toll bridges belonging to a corporation are to be 
taxed to the corporation. S N. H. R., 207. And toll 
bridges across Connecticut river are taxable in this state. 
Ibid. 

24. When the property of a corporation is taxed to the 
corporation, the shares in such corporation are not liable to 
be taxed to the stockholders. 8 N. H. R., 209. 

25. If a person, having his home in a town, leaves for 
health or business for an uncertain time, intending to return 
and take up his abode, he is liable to be taxed for his person 
and estate in such town, though he was absent sixteen 
months and his family twenty-five months. 1 Metcalf R., 
252. But not, if he left town without such intention to 
return. 1 Metcalf jR., 246. 



81 



CHAPTER 19 



OF THE ANNUAL INVOICE OF POLLS AND TAXABLE 
PROPERTY". 



7. Agents of corporations to give 

account of taxable property. 

8. Doomage, incase of neglect. 

9. Agents of corporations to give 

list of shares and deposits. 
10. Penalty for neglect. 



1. Invoice to be taken in April. 

2. Selectmen to give notice. 

3. Or make personal application. 

4. Account to be exhibited on 
oath. 

5. Doomage, in case of neglect. 

6. Wilful omission, penalty. 

1. The selectmen of each town shall annually, in the 
month of April, take an invoice of all the polls and property 
liable to be taxed in such town on the first day of the same 
month. R. S., ch. 41, sec. 1. 

2. The selectmen may seasonably give notice of the time 
and place appointed by them to receive an account of the 
polls and taxable property in such town, by posting up ad- 
vertisements at some public place or places in such town, 
or in any other manner the town may at any legal meeting 
direct. Ibid., sec. 2. 

The form of such notice may be thus : 
To the Inhabitants of the town of D., and persons liable 
to be assessed therein. 
You are hereby notified that the subscribers will be in 
session at the house of C. D., in said town, on Mondav the 
first, Tuesday the second, and Saturday the sixth of April 
next, from eight o'clock, A. M., to six o'clock, P. M., of 
each day, for the purpose of receiving an account of the 
polls and taxable property in such town, which account you 
are required to render. 

Given under our hands, this twentieth day of March. 
1843. 

N. P. \ 

L. B. > Selectmen of D. 

C. T, J 

3. The selectmen, or either of them, may make personal 
application to the respective inhabitants of the town, to any 
person having the care of personal property taxable therein, 



82 OF THE ANNUAL INVOICE OF 

and to the officers of any corporation, for an account of the 
polls and rateable estate for which they are liable to be 
taxed. Ibid., sec. 3. 

4. All persons liable to be taxed in such town, shall ex- 
hibit to the selectmen, at the time and place appointed by 
them, or upon such personal application, a true account of 
the polls and estate for which they are there taxable, either 
in their own right or otherwise, on oath if required by either 
of the selectmen, which oath either of the selectmen may 
administer. Ibid., sec. 4. 

The account given in should be taken down in writing by 
the selectmen, and an oath administered as follows : 

" You solemnly swear that the account which you have 
now given in, is a true and perfect account of all the polls 
and estate for which you are liable to be taxed in this town, 
either in your own right or otherwise. So help you God." 

5. If any person shall neglect or refuse, after due notice 
given as aforesaid, or when called upon by any selectman, 
to give such account, the selectmen shall set down to such 
person, by way of doomage, as much as they judge equita- 
ble, which shall be conclusive in all cases, unless the party 
shall shew, by his statement under oath, that it was not in 
his power to exhibit such statement. Ibid., sec. 5. This 
applies to the case where the party neglects or refuses to 
exhibit any account of his taxable property, or to make oath. 

6. If any person, in giving to the selectmen such account, 
shall wilfully omit any part of the estate for which he is 
taxable, the selectmen may, upon discovery of the fraud, 
assess such person in all taxes of that year four times as 
much as such estate, if given in, would be legally taxable. 
Ibid., sec. 6. This applies to the case where the party gives 
in an account, but intentionally omits a part of his taxable 
property. 

7. The cashier, treasurer, agent or other principal officer 
of every bank, savings institution, insurance company, rail- 
road or other corporation, shall, on application in person 
or by writing by any selectman, furnish at the principal 
place of business of such corporation, an account in writ- 
ing, on oath if required, of all the rateable estate of such 
corporation, and a like account of all shares and deposits 
therein, which are owned by any person resident or corpo- 
ration established out of the state, within four days after 
such application. Ibid., sec. 7. 



POLLS AND TAXABLE PROPERTY. 



83 



8. If such officer of any corporation as aforesaid shall 
neglect or refuse, upon application, to give such account of 
its rateable estate, such corporation may be doomed in the 
same manner as individuals ; and if any such property shall 
be wilfully omitted in such account, such corporation may 
be assessed fourfold therefor, in the same manner as indi- 
viduals are liable. Ibid., sec. 8. 

9. The cashier or other principal officer of every bank 
or other corporation as aforesaid, shall, upon such applica- 
tion, furnish a like account of all shares or deposits therein, 
owned by any inhabitant of the town of which the person 
applying is selectman, and the value thereof, whether mort- 
gaged or pledged, or not, within four days after such appli- 
cation is made. Ibid., sec. 9. 

10. If any such officer shall wilfully neglect or refuse 
to furnish as aforesaid any such account as is required by 
this chapter, he shall forfeit a sum not less than one hundred 
nor more than four hundred dollars, for the use of such 
town. Ibid., sec. 10. 



CHAPTER 20. 

OF THE APPRAISAL OF TAXABLE PROPERTY. 



1. Selectmen to appraise truly. 

2. Several interests and timber 
to be appraised separately. 

3. Manner of making invoice. 



4. Deduction from invoice of in- 

sane persons. 

5. Value of shares ascertained. 

6. Appraisal made under oath. 



1. The selectmen shall appraise all taxable property at its 
full and true value in money, and shall receive and consider 
all such evidence as may be exhibited to them relative to the 
value of shares in corporations and other property, the value 
of which cannot be determined by personal examination. 
They shall deduct from the appraised value of shares in any 
corporation, a just proportion of the value of any estate of 
such corporation which shall be legally taxed elsewhere, upon 
satisfactory evidence thereof under oath. U.S., ch. 42, sec. 1. 



84 OF THE APPRAISAL OF TAXABLE PROPERTY. 

2. Whenever it shall be made to appear to the selectmen 
that several persons are owners of several interests in the 
same real estate, or that one person is the owner of land 
and another is the owner of any building, timber or wood 
standing thereon, they shall, upon request, appraise such 
several interests, and assess the same to the several owners 
thereof separately. Ibid., sec. % This is to be done only 
upon request, and upon satisfactory evidence of such several 
interests. 

3. The selectmen shall set down in their invoice, in sep- 
arate columns, the value of improved and unimproved land ; 
of buildings, not specially designated ; mills and carding 
machines; factories and their machinery ; wharves; ferries; 
toll-bridges ; locks and canals ; the value of stocks in public 
funds; of shares in banks and other corporations; the amount 
of money on hand, at interest or on deposit ; stock in trade ; 
the value of carriages ; the number and value of horses, 
asses and mules ; of cows, oxen and other neat stock ; and 
of sheep. Ibid., sec. 3. For form of invoice and rules for 
taxation, see Appendix. 

4. The selectmen shall make such deductions from the 
appraised value of the property of insane persons as they 
shall think just and reasonable, whenever it shall appear that 
the income of their estates is not sufficient to support them. 
Ibid., sec. 4. In " insane persons" are included a non com- 
pos, idiotic, lunatic or distracted person. JR. S., ch. 1, sec. 15. 

5. The taxable value of shares in corporations may be ascer- 
tained, by first ascertaining their market value, and also the 
amount of the estate for which the corporation is taxed, of 
which the stockholder must furnish " satisfactory evidence," 
if he claims a deduction. Divide the amount of the corpo- 
rate estate so taxed by the whole number of shares in the 
corporation, which will give the proportion for which each 
share is already taxed. Deduct this amount from the mar- 
ket value of the shares, and the balance will be the value of 
the shares upon which the tax is to be assessed. The rea- 
son is, that otherwise the property would be twice taxed; to 
the corporation as estate, and to the stockholder as stock. 

6. All appraisals of property by selectmen are made under 
the sanction of their oath of office, which is to "appraise all 
taxable property at its full and true value in money," although 
no oath is now required immediately before the appraisal. 



85 



CHAPTER 21. 



OF THE ASSESSMENT OF TAXES. 



1. Taxes, how assessed. 

2. What property exempted. 

3. Selectmen to assess taxes. 

4. Five per cent, to be assessed 
extra. 

5. Several taxes may be included 
in one assessment. 

6. Record of invoice and taxes. 

7. Returns to state and county 
treasurers. 

8. Collector's list and warrant. 



9. Return to state treasurer,form. 

10. Return to county treasurer, 

form. 

11. Return to town treasurer, 
form. 

12. Form of a collector's warrant. 

13. Assessment, when illegal. 

14. List and warrant must be 
signed. 

15. Assessment of school tax. 

16. Assessment of highway tax. 



1. All taxes for the year following, shall be assessed 
upon the invoice made as aforesaid, estimating each poll at 
one dollar and fifty cents, and taxable property at the rate 
of fifty cents on each hundred dollars of its appraised value. 
R. S., ch. 43, sec. 1. 

2. Any town may, at their annual meeting, an article for 
that purpose being inserted in the warrant, exempt unim- 
proved lands of non-residents from any tax or part thereof. 
Ibid., sec, 2. 

3. The selectmen shall seasonably assess all state and 
county taxes for which they shall have the warrants of the 
state and county treasurers respectively ; all taxes duly voted 
in their towns, and all school and school-house taxes author- 
ized by law, or by vote of any school district, duly certified 
to them. Ibid. sec. 3. 

4. In assessing such taxes the selectmen may assess a sum 
not exceeding five per cent, more than the amount of such 
tax, to answer any abatements that may be made, which 
shall be paid into the town treasury, for the use of the town. 
Ibid., sec. 4. 

5. The selectmen may include in one assessment the 
state, county, town and school taxes, or so many of them as 
may be found convenient. Ibid,, sec. 5. 

6. A fair record shall be made of every invoice taken by 
the selectmen, and of all taxes by them assessed, in a book 
of records of the doings of the selectmen, in their office, 



86 



OF THE ASSESSMENT OF TAXES. 



which shall be the property of the town ; and such invoice 
and assessments, or a copy thereof, shall, prior to the first 
day of July, be left with the town-clerk, and recorded by 
him ; and both of said records shall be open to the inspec- 
tion of all persons. Ibid., sec. 6. 

The invoice and tax lists, as recorded by the selectmen, 
should be certified and signed by them. For form, see Ap- 
pendix. 

7. The selectmen shall seasonably make a return to the 
state and county treasurers of the names of the collectors 
of their respective towns, with the date of their warrants, 
with the amount they are required to pay to such treasurers 
respectively, and at what times. Ibid., sec. 7. 

8. A list of all taxes by them assessed shall be made by 
the selectmen, under their hands, with a warrant under their 
hands and seal, directed to the collector of such town, re- 
quiring him to collect the same, and to pay over to the state 
and county treasurer, and to the selectmen or town treasurer, 
such sums at such times as may be therein prescribed. 
Ibid., sec. 8. 

9. The return to the state treasurer may be thus : 
To the Treasurer of the State of New-Hampshire : 

Agreeably to a warrant by you issued, dated December 1, 
1842, we have assessed upon the polls of the inhabitants of 
the town of , and upon estate taxable therein, the sum 

of ; and have committed lists thereof to A. B., collect- 
or of said town, with warrants bearing date May 1, 1843, 
directing him to pay said sum to you on or before the first 
day of July, 1843. 

Witness our hands, this first day of June, 1843. 

N. D., &c, Selectmen of . 

10. The return to the county treasurer may be in the 
same form, substituting the words County of , instead of 
" State of New-Hampshire." 

11. The selectmen should also give to the town treasurer 
a certificate of all the taxes which are payable to him by the 
collector, which may be in form as follows : 

To A. B., treasurer of the town of D. We have as- 
sessed upon the rateable polls and estate in said town the 
sum of dollars, voted by said town to be raised to 

defray town charges, and have committed to N. P., collector 



OF THE ASSESSMENT OF TAXES. 87 

of said town, a list of said assessment, with a warrant bear- 
ing date , requiring him to pay to you the sum of dol- 
lars on or before the day of next, and the residue 
on or before the day of next. 
Witness our hands this day of , 184 . 

G. H., &c, Selectmen of — : — . 

If the highway tax is ordered to be paid in money, after 
the words "town charges," in the above, should be added — 
and also the sum of , voted by said toivn to be raised 

for the repairs of highways and bridges. 

12. The form of the warrant for the collection of the taxes 
of inhabitants may be thus : 

STATE OF NEW-HAMPSHIRE. 
Sullivan, ss. To John Smith, collector of taxes for the 
town of Cornish, in said county. 




In the name of said state you are directed to 
levy and collect of the several persons named in the list here- 
with committed to you the taxes in said list set against their 
names respectively, the whole amounting to the sum of ; 
and we further order you to pay the same, when collected, as 
follows : To the treasurer of said state the sum of , to be 
paid on or before the day of next ; to the treasurer 
of the county of Sullivan the sum of , to be paid on or 
before the day of next ; to the several school dis- 

tricts in said town as follows : No. 1, the sum of dollars ; 
No. 2, the sum of. &c, — said sums to be paid to the pruden- 
tial committees of said districts respectively, one third on or 
before the day of next, and the remainder on or before 
the day of next ; and to the treasurer of the said 
town the remainder of said list, as follows : The sum of , 
on or before the day of next, and the balance on or 

before the day of next. The list aforesaid is a correct 
list of the assessment of the state, county, town and school 
taxes for the year 1843, upon the rateable polls and estates 
of the inhabitants of said Cornish, as made by us, the select- 
men of said Cornish. 

If any person named in said list, after having received 
from you a written notice of the tax for which he is liable, 
given to him in person or left at his usual place of abode by 
you, shall neglect or refuse, for the space of fourteen days, 



OO OF THE ASSESSMENT OF TAXES. 

to pay the same, or if any corporation named in said list, 
after a like notice, shall neglect or refuse to pay such tax, 
or if you have reason to believe that any person named in 
said list is about to remove from town, and such person 
shall, on demand, neglect or refuse to pay his tax, you are 
directed to collect the same by distress and sale of the goods 
of such person or corporation, in the mode prescribed by 
law ; but you are not to distrain the tools or implements of 
any person necessary for his trade or occupation, nor his 
arms, nor his utensils of household necessary for upholding 
life ; nor bedding or apparel necessary for him or his family ; 
nor the uniform, arms or equipments of any officer, non- 
commissioned officer or private. And for want of goods 
and chattels whereon to make distress, you are directed to 
take the body of any person refusing or neglecting to pay 
as aforesaid, and to commit him to the common jail, there 
to remain until discharged according to law. 

If any person shall die, or remove from the town, with- 
out having paid the tax aforesaid assessed against him, and 
shall leave in said town no personal estate on which 
distress can be made, or in case any person or persons shall 
neglect or refuse to expose goods and chattels whereon dis- 
tress may be made, you are directed, within one year from 
the first day of June next, to sell so much of the real estate 
of such delinquent as will pay the taxes and incidental 
charges, and to execute a conveyance of the same in the 
manner prescribed by law. 

Given under our hands and seal, at Cornish, this first day 
of May, in the year 1843. 

G. D. . 

Selectmen of Cornish. 



G. D.) 
H. F. } 
R.D. j 



If the highway tax is directed by the town to be paid in 
money, the word " highway" should be added in said form 
before '.* and school." And so also in case of school house 
taxes ; after " inhabitant of said Cornish," in the form, add 
— and of the school-house tax assessed upon the rateable polls 
and estate in District No. 3, in said town. 

13. In making an assessment the selectmen should be 
careful not to exceed the sum voted, and five per cent, in 
addition ; if it does exceed it even a few cents the tax will 
be illegal, and the selectmen liable. 2 Greenleaf R., 375 ; 
20 Pick. R., 418. 



ABATEMENT OF TAXES AND DISCOUNT. 



89 



14. The list of assessments must be signed, even if the 
warrant is upon the same paper, and signed also. 3 Green- 
leaf R., 220. 

15. For the assessment of school taxes, see Schools. 

16. For the assessment of a highway tax, see Highways. 

17. For further directions, see ch. 26. 



CHAPTER 22 



OF THE ABATEMENT OF TAXES AND OF DISCOUNTS. 



1. Selectmen may abate, when. 

2. Court of common pleas,when. 

3. Discount on tax, when allow- 
ed. 



4. Form of notice of discount. 

5. Court has power, when. 



1. Selectmen, for good cause shewn, may abate any tax 
assessed by them or their predecessors. R. S., ch. 44, sec. 1. 

2. If they shall neglect or refuse, any person conceiving 
himself aggrieved, having first complied with the provisions 
contained in section 4, chapter 19, of this Title, may, within 
nine months after notice of such tax, and not afterward, 
apply by petition to the court of common pleas in the same 
county, who shall make such order thereon as justice may 
require. Ibid., sec. 2. 

3. Any town may, by vote at the annual meeting, direct 
a discount to be made to those persons who shall pay their 
taxes within such periods as the town may limit ; and every 
person so paying shall be entitled to such discount. R. S. } 
ch. 45, sec. 17. 

4. Notice of such discount may be given by the select- 
men as follows : 

The selectmen of the town of B. give notice that they 
have delivered to A. B., collector of taxes, a correct list of 
the taxes, together with a warrant in due form of law for 
collecting the same ; and that by a vote of said town, to all 



90 



COLLECTION OF TAXES OF RESIDENTS. 



persons who shall voluntarily pay the collector, a discount 
will be made on their taxes as follows : 

To such as pay within 30 days, 1 per cent. 

To such as pay within 60 days, 2 per cent. 

To such as pay within 120 days, 3 per cent. 

I. S., &c, Selectmen of B. 

B ,May\,\&iZ. 

5. Under the former statute of July 7, 1827, the court 
had no authority to abate, except where property was over- 
valued ; not when a person was taxed for property which he 
did not possess, or which was not taxable. 2 N. H. R., 
238 ; 8 N. H. R.,\ 66 ; but by the Revised Statutes the power 
of the court seems to be as broad as that of the selectmen. 



CHAPTER 23 



OF THE COLLECTION OF TAXES OF RESIDENTS. 



1. Collector's power. 

2. Collector to give notice of 
taxes. 

3. Collector to give notice to 
corporations. 

4. Distress on delinquent's 
goods. 

5. Articles exempt from distress. 

6. Notice and sale of goods dis- 
trained. 

7. Account of sale to be given to 
the owner. 

8. Arrest for taxes. 

9. Copy of warrant, &c, left 
with jailer. 

10. Collector's power, where a 
person removes. 



11. Collector's fees. 

12. Liability of corporations. 

13. Real estate holden. 

14. Notice of sale of real estate. 

15. Sale of real estate, proceed- 
ings. 

16. Town may fix time when no- 
tice to be given. 

17. Form of advertisement for 
distress. 

18. Form of account of sale. 

19. Certificate left with jailer. 

20. Form of advertisement for sale 

of real estate. 

21. Mode of proceeding in sale. 

22. "Real estate," meaning of 
word. 



1. Every collector, in the collection of the taxes commit- 
ted to him to collect, and in the service of his warrant, shall 
have the powers by law vested in constables in the service 



COLLECTION OF TAXES OF RESIDENTS. 91 

of civil process, which shall continue until all the taxes in 
his list are collected. R. S., ch. 45, sec. 1. 

2. The collector shall give notice of such tax to every 
person taxed, or leave a notice thereof in writing at his 
usual place of abode, fourteen days at least before he shall 
distrain therefor, unless in cases where he has reason to 
believe such person is about to remove from town. Ibid., 
sec. 2. 

Such notice may be as follows : 

To A. B. The taxes assessed against you in the town 
of , for the year 184 , are committed to me for 

collection, and are as follows : state tax, $ ; county 

tax, $ ; town tax, $ ; school tax, $ 

G. C, Collector. 

3. The collector shall give the same notice, in writing, of 
all taxes assessed against any corporation, to the cashier, 
treasurer or some principal officer of such corporation. 
Ibid., sec. 3. 

4. Upon neglect or refusal of any person or corporation 
to pay the taxes assessed on them, the collector may dis- 
train the goods and chattels of such person or corporation. 
Ibid., sec. 4. 

5. No distress shall be made of any person's tools or im- 
plements necessary for his trade or occupation ; nor of his 
arms, or utensils of household necessary for upholding life, 
nor of bedding or apparel necessary for him or his family. 
Ibid., sec. 5. Nor of the uniform, arms and equipments of 
any officer, non-commissioned officer or private. R. S., 
ch. 80, sec. 12. 

6. The collector shall keep the property distrained four 
days, at the cost of the owner. If the tax, cost and charges 
are not then paid, he shall post up, in two or more public 
places in the town where the sale is to be, twenty-four hours 
before the time of sale, a Yiotice of the place, day and hour 
of sale, with a particular description of the property to be 
sold ; and at the time and place appointed, which shall be 
in the town where the distress is made, between the hours 
of ten in the forenoon and six in the afternoon, and within 
forty-eight hours after the expiration of said four days, shall 
sell the same at public auction, to the highest bidder. Ibid., 
sec, 6. 

7. A particular account in writing of the taxes of the 



92 COLLECTION OF TAXES OF RESIDENTS. 

delinquent, the collector's fees, and the charges of keeping 
and sale ; and the amount of sale of each article, with the 
overplus, if any, after deducting said taxes and charges, 
shall be delivered immediately upon such sale to the owner, 
or be ready to be delivered to him upon request. Ibid., 
sec. 7. 

8. For want of goods and chattels whereon to make dis- 
tress, the collector may take the body of any person neg- 
lecting or refusing to pay the tax assessed against him, and 
commit him to the common jail. Ibid., sec. 8. 

9. In such case the collector shall give to the jailer an 
attested copy of his warrant, and thereupon certify the sums 
such person is taxed in his list, and that he has taken his 
body for want of goods and chattels whereon to make dis- 
tress ; and the jailer shall receive and detain such person in 
his custody until he pays such tax, costs of commitment 
and charges of imprisonment, or be otherwise discharged 
thereof by due course of law. Ibid., sec. 9. 

10. In case of removal from town, or of an assessment upon 
the personal property of non-residents, the collector may 
distrain the property, or arrest the body of any person 
named in his list, wherever such person or his property may 
be found. Ibid., sec. 10. 

11. Collectors shall be entitled to the same fees for the 
collection of taxes by distress and sale, or for arresting or 
committing any person to jail, as sheriffs are entitled to re- 
ceive for like services upon civil process. Ibid., sec. 1 1. 

12. The real and personal property of corporations shall 
be liable to be taken and sold for taxes in the same manner 
as the property of individuals ; and the franchise of taking 
toll may be taken and sold for taxes in the same manner as 
the same may be sold on execution. Ibid., sec. 12. 

13. The real estate of every person or corporation, against 
whom any tax may be assessed, shall be holden for such tax 
for one year from the first day of June following, and may 
be sold by the collector in case such person shall die or re- 
move from town, and leave there no personal estate on which 
distress can be made, or in case such person or corporation 
shall neglect or refuse to expose goods and chattels whereon 
distress may be made. Ibid., sec. 13. 

14. The collector shall give notice of such sale, by post- 
ing up advertisements thereof in two or more public places 
in the town, at least six weeks before the sale, in which shall 






COLLECTION OF TAXES OF RESIDENTS. 93 

be stated the name of the owner, or of the person to whom 
the same was taxed, and also the name of the occupant, if 
any, at the time of posting such notice ; the amount of the 
tax, and the place day, and hour of the sale. Ibid., sec. 14. 

15. The powers and duties of the collector, in relation to 
such sale ; the time, place and manner of the same ; the 
powers and duties of the collector and town-clerk, in rela- 
tion to the proceedings subsequent thereto ; the fees of the 
collector and town-clerk, and the rights of the owner in re- 
lation to the redemption thereof, shall be the same as are 
prescribed by the law relating to the sale of the estates of 
non-residents. Ibid., sec. 15. 

16. Any town may, by vote at the annual meeting, direct 
the time at which notice shall be given to persons whose 
taxes shall then be unpaid, of the amount of the same ; and 
if the same shall not be paid, with twenty cents more for 
such notice, within fourteen days thereafter, the collector 
may distrain for the same. Ibid., sec. 18. 

The notice in such case may be like that of a discount, 
ch. 22, sec. 4, leaving out all after the words, " a vote of 
said town" and substituting — if the tax of any person or 
corporation shall not be paid on or before the day 

of next, said collector is directed to give written 

notice of the amount of such tax to such delinquent ; and if 
the same, with twenty cents more for such notice, is not paid 
to him within fourteen days thereafter, he may distrain for 
the same. B. D., &c, Selectmen of D. 

D ,May 1, 184 . 

17. The form of the advertisement for selling property on 
distress may be as follows : 

Distress for Taxes. 
Taken as a distress for taxes, and will be sold at public 
auction, for cash, at the store of A. B., in Ossipee, in the 
county of Carroll, on Thursday, the fifth day of September 
instant, at one o'clock in the afternoon, one red yearling 
heifer and six sheep. 

George Hobbs, Collector. 
Ossipee, September 4, 1843. 

18. The form of the account of taxes and sale, to be 
delivered to the owner, or be ready for delivery when he 
calls for it, may be thus : 

To John Smith : The following is an account of your 



94 COLLECTION OF TAXES. 

taxes, for which a red yearling heifer and six sheep have 
been taken as a distress by me, the subscriber, and sold 
this day of , 184 , at public auction ; 

and also an account of my fees, and the charges of keeping 
and sale, with the amount of the sale of each article. 

Your tax is as follows: town tax, $5.30 ; county tax, 
$2.30; state tax, $1.94; school tax, $3.87; all amount- 
ing to - - - - - - - $13.41 

Expenses of taking and keeping said 

property, $1.50 \ 

Expenses of advertising and selling >2.75 

the same, $1.25 ) 



Amount of taxes and expenses, - - $16.16 
Said heifer sold to S. B., he being the 

highest bidder, for - - - $7.00 
Said six sheep sold to N. O., he being 

the highest bidder, for - - 10.00 



Amount of sale, - 17.00 

Deduct the above taxes and charges, - 16.16 

Balance due you, to be delivered 

on request, - $00.84. 

George Hobbs, Collector of Ossipce. 
The collector should make out and sign a record of the 
advertisement, and of his doings in every such sale, and 
preserve the same for his own security. 

19. The certificate made by the collector on the copy of 
his warrant left with the jailer may be as follows : 

Carroll, ss., September 4, 1843. I have taken the 
body of John Smith, of Ossipee, in said county, upon the 
original warrant, of which the within is a true and attested 
copy, for his neglect to pay the taxes assessed against him 
in said town, the amount of which is as follows : state tax, 
$1.94; county tax, $2.30; town tax, $5.30; school tax, 
$3.87 ; and for want of goods and chattels whereon to make 
distress have committed him to the common jail of said 
county therefor. The fees for arresting said Smith and 
committing him to jail are $2.75. 

George Hobbs, Collector of Ossipee. 

20. The form of the advertisement, for the sale of the 
real estate of residents, may be thus: 



FORM OF PROCEEDINGS. 



95 



Collector's Sale of Real Estate. 

All persons interested in the following tracts of land in 
the town of Wendell, in the county of Sullivan, are notified 
that the same are taxed in the tax list committed to the sub- 
scriber, who is collector of taxes for said town for the year 
1843, as follows : 



Name of lDescription 
owner, i of land. 



Name of State County Town School High- 
occupant, tax. tax. tax. tax. way tax. 



A.B. 
N. D. 



Bond place. 

Wood lot on 

H. hill. 



T. P. 



1.10 
.40 



1.30 
.47 



2.40 

.87 



2.80 
1.00 



1.15 

.42 



And if no person shall appear to discharge said taxes on 
or before the first day of January next, at two o'clock in 
the afternoon, I shall then proceed to sell, at the store of Peter 
Jones in said town, at public auction, so much of said real 
estate owned by each delinquent respectively, as will be suffi- 
cient to discharge said taxes and all incidental charges 
against such person. 

George Hobbs, Collector. 

Wendell, October 1, 1843. 

The affidavit of posting may be as follows : 

I, George Hobbs, certify that I posted up a copy of the 
within advertisement at the store of O. L., in said town, and 
a like copy at the tavern of P. D., in said town, on the first 
day of October, 1843, being more than six weeks before said 
day of sale. 

George Hobbs. 

Sullivan, January 1, 1844. Then appeared the said 
George Hobbs, and made oath that the above certificate by 
him signed is true. Before me, 

R. D., Justice of the Peace. 

21. All the proceedings respecting the sale (except the 
time and manner of advertising,) are the same as is set 
forth in the following chapter, in the case of non-resident 
taxes. 

22. For the meaning of " real estate" see ch. 24, sec. 20. 



96 



CHAPTER 24 



OF THE COLLECTION OF TAXES OF NON-RESIDENTS. 



1. List of non-resident taxes. 

2. Copy given to deputy secre- 
tary. 

3. Deputy secretary to receive 

taxes. 

4. Deputy secretary to return 
copy. 

5. Collector to advertise sale. 

6. Form of advertisement. 

7. Advertisement to be posted. 

8. Time and place of sale. 

9. Return to town-clerk made. 

10. Owner may redeem, how. 

11. Collector to give receipt. 

12. Money tendered left with town 

clerk in certain cases. 

13. Persons interested may re- 
deem their share. 



14. Collector to leave list of lands 
redeemed, with town-clerk. 

15. Form of collector's deed. 

16. Non-residents may work out 
highway tax. 

17. Collector's fees. 

18. Collector's fees to be divided. 

19. Penalty for taking greater fees. 

20. Sale of buildings and timber. 

21. Advertisement, form of. 

22. Affidavit of posting, form. 

23. Account of sale, form. 

24. What to be done by selectmen. 

25. What to be done by collector. 

26. Duties of town-clerk. 

27. Non-resident taxes, how paid. 

28. Collector's deed, when valid 



1. A list of the taxes assessed on the real estate of persons 
not resident in the town, shall be made by the selectmen, 
under their hands, in which shall be inserted the name of 
the owner, if known, otherwise the name of the original 
owner, if known ; the number of the lot and range, if lotted, 
otherwise such description as the land may be readily known 
by ; the number of acres, and the amount of taxes assessed 
thereon. R. S., ch. 46, sec. 1. For the form of such list, 
see Appendix. 

2. Such list shall be delivered to the collector on or be- 
fore the thirtieth day of May ; and the collector shall, on or 
before the eighth day of the next session of the general court 
in June, deliver a certified copy of his list to the deputy 
secretary, who shall certify thereon the time of its receipt. 
Ibid., sec. 2. Said copy should be certified by the collector 
thus : 

The above is a true copy of the list of non-resident taxes 
in the town of C, in the county of B., for the year 1843, 
as delivered to me by the selectmen of said town. 

G. H., Collector. 

3. The deputy secretary shall keep such copy at Concord 



COLLECTION OF TAXES OF NON-RESIDENTS. 97 

till the first day of September following, for the inspection 
of all concerned, and shall receive the tax on any tract, with 
ten per cent, thereon for his services, and give a receipt 
therefor. Ibid., sec. 3. 

4. The deputy secretary, at any time after the first day of 
September, on application shall return the said copy to the 
collector, with a certificate of the taxes by him received, and 
shall pay to the collector the amount, taking his receipt 
therefor. Ibid., sec. 4. 

5. The collector, after receiving from the deputy secre- 
tary said copy and certificate, shall advertise the lands on 
which the taxes have not been paid, for sale, in the New- 
Hampshire Patriot and State Gazette, printed at Concord, 
and also in some newspaper printed in the county where the 
land is situate, if any — otherwise in some adjacent county. 
Ibid., sec. 5. 

6. The advertisement shall contain the same name, same 
description of the land taxed, and the amount of tax, which 
is inserted in the collector's list, and the time and place of 
the sale ; and shall be published three weeks successively, 
commencing at least eight weeks before the sale. Ibid., 
sec. 6. 

7. A similar advertisement shall be posted up at some 
public place in the town where the lands lie, during the 
same period. Ibid., sec. 7. 

8. Every such sale shall be at auction, in some public place 
in the town or place where the land is situate, and between 
the hours of ten in the forenoon and six in the afternoon ; 
and shall be of so much of the owner's estate as will pay the 
taxes and incidental charges ; but if necessary the sale may 
be adjourned from day to day, not exceeding three days, by 
proclamation made at the place of sale within the hours 
aforesaid. Ibid., sec. 8. 

9. The collector shall, within ten days after any sale, de- 
liver to the town-clerk an account of the sales, with the 
charges of sale, under oath ; copies of the newspapers in 
which the advertisement was published, and the advertise- 
ment posted up, with an affidavit that it was so posted up, 
which shall be kept on file ; and the said account, adver- 
tisement and affidavit shall be recorded by the town-clerk, 
and a certified copy of such record shall be competent evi- 
dence. Ibid., sec. 9. 



98 COLLECTION OF NON-RESIDENT TAXES. 

10. Every person interested in any land sold as aforesaid, 
may redeem the same by paying or tendering to the collector 
or his administrator, or, in his absence, at his usual place of 
abode, the amount for which the land was sold, with twelve 
per cent, interest thereon from the sale to the time of such 
payment or tender. Ibid., sec. 10. 

11. Upon such payment or tender the collector or his ad- 
ministrator shall give a receipt therefor, and shall pay over 
the money so paid or tendered to the purchaser upon de- 
mand. Ibid., sec. 11. 

12. In case a tender shall be made in the absence of the 
collector or his administrator, at his house, the party ten- 
dering shall, before the time of redemption expires, leave the 
money so tendered with the town-clerk, for the use of such 
collector, with a notice of such tender, which shall be forth- 
with recorded by said town-clerk, who shall give a receipt 
for the same, and shall be paid by the person making such 
tender, as his fees, ten per cent, upon the amount so ten- 
dered. Ibid., sec. 12. 

The form of the notice of tender may be thus : 
To ivhom it may concern : This certifies that on the 
day of , 1 tendered at the dwelling-house of A. B., 

collector of the town of C, being his usual place of abode, 
the said A. B. being then absent, the sum of , be- 

ing the amount for which certain real estate in said C, 
described thus , was sold by him for the taxes 

thereon, with twelve per cent, interest. 

C , June 1, 18 . E. F. 

13. Every person interested with others in any lot or tract 
of land, may pay his proportion of the tax, and the residue 
only shall be sold ; or he may redeem his share of the land 
when sold, by paying his proportion of the tax, cost and 
interest. Ibid., sec. 13. 

14. Within ten days after the time of redemption shall 
expire, the collector shall leave with the town-clerk, to be 
recorded, a correct list of the lands so redeemed. Ibid., 
sec. 14. 

The form of such list may be thus : " The following is a 
correct list of the real estate of persons not resident in the 
town of D., advertised and sold by me for the non-payment 
of taxes and charges thereon, on the tenth day of February, 
1844, and which were redeemed by the payment of said 



COLLECTION OF NON-RESIDENT TAXES. 99 

taxes and charges on or before the tenth day of February, 
1845. 
Ten acres of the Weld place, sold to Peter Gray for $4.04. 

Noah Porter, Collector. 
15. The collector, if living, otherwise his administrator, 
shall, at the end of one year from the sale, execute to the 
purchaser, or his heirs, a deed of the land so sold and not 
redeemed, which shall be substantially in the following form : 
Know all men by these Presents, that I, , col- 

lector of taxes for the town of , in the county of , 
and state of New-Hampshire, for the year 18 , by the 
authority in me vested by the laws of the state, and in con- 
sideration of , to me paid by , do hereby sell and 
convey to him, the said , his heirs and assigns, (here 
describe the land sold) to have and to hold the said prem- 
ises, with the appurtenances, to him the said , his heirs 
and assigns forever. And I do hereby covenant with 
said , that in making sale of the same I have in all 
things complied with the law, and that I have good right, 
as far as that right may depend upon the regularity of my 
own proceedings, to sell and convey the same in manner 
aforesaid. 

In witness whereof I have hereunto set my hand and 
seal, the day of , A. D. 

Signed, sealed and delivered 

in presence of Ibid., sec. 15. 

16. Every non-resident shall have the right, at any time 
between the first day of June and the twentieth day of July, 
to pay any highway tax assessed on his land in labor, under 
the direction of such surveyor of highways, or other proper 
person, as the selectmen may designate ; and such select- 
men or surveyor shall give to such non-resident a certificate 
of the amount of such labor, which shall be received by the 
collector and by the town-clerk in payment of such tax. 
Ibid., sec. 16. 

This section does not probably apply to the cases where 
the highway tax is to be paid in money. 

17. The fees of collectors shall be as follows : For travel 
to the deputy secretary, for the copy of his list, thence to 
the places where the advertisements for the sale are to be 
printed, and returning home, five cents per mile ; for adver- 
tising in the newspapers and in town, one dollar ; for making 
the s,ale, one dollar a day, and the same sum for a clerk ; 



100 



COLLECTION OF NON-RESIDENT TAXES. 



for each deed made to a purchaser, twenty-five cents ; and 
the sums actually paid the printers, not exceeding one dol- 
lar a square for three insertions, shall be a legal charge. 
Ibid., sec. 17. 

18. The collector shall make out an equal proportion of 
his fees and charges, and of the sums paid to printers, to 
each lot or tract of land advertised or sold as aforesaid ; and 
no person shall be holden to pay any more costs than his 
just proportion of those incurred at the time of the payment 
of his tax. Ibid., sec. 18. 

19. If any collector shall demand or take any other or 
greater fees than are by law allowed for any of the services 
by him rendered, he shall forfeit five dollars to the person 
suing therefor. Ibid., sec. 19. 

20. Any separate interest in land, and any buildings, tim- 
ber or wood, standing or growing on land owned by another 
person, shall be taken to be real estate, within the meaning 
of this and the preceding chapter. Ibid., sec. 20. 

In " real estate" is also included all kinds of property 
specified in ch. 17, sec. 3. 

21. The form of the advertisement may be thus : 

STATE OF NEW-HAMPSHIRE. 

Strafford ss. Notice is hereby given, that so much of 
the following real estate in the town of Dover, in said county, 
belonging to persons not resident in said town, as will 
pay the following taxes assessed upon each tract respectively 
for the year 1843, with incidental charges, will be sold at 
public auction, at the store of John Davis, in said Dover, on 
Wednesday, the tenth day of February next, at ten o'clock 
in the forenoon, unless prevented by previous payment. 



Owners. 


Original 
Owners. 


Description. 


o 

C3 

d 


o 

O 

6 
z 


c 
a 


a 

_o 

"so 

'> 

s 


cob 




c . 


o • 
o » 

Of-, 


E 


A. B. 

N. P. 


H. L. 


Weld place. 


100 
50 


3 


2 


1 


10 
5 


10 

5 


40 
20 


30 
15 


23 
11 



Noah Porter, Collector. 
Dover, December 1, 1843. 

The description of the lands taxed and the tax itself 
should correspond with the collector's lists. If the owners 
are known, or the original owners unknown, the second 



COLLECTION OF NON-RESIDENT TAXES- 101 

column may be omitted. If the number of lot, range and di- 
vision are unknown, those columns may be omitted. Some- 
times the valuation is inserted. If two or more of the above 
classes of taxes are included in one assessment, the heading 
of the column should correspond. 

22. The affidavit of posting up may be as follows : 
Dover, February 10, 1844. I certify that on the first 

day of December last I posted up the within advertisement 
at the tavern of S. D., in said Dover, and that the same re- 
mained so posted up until the day of sale herein mentioned. 
I also caused a copy of said advertisement to be published 
in the New-Hampshire Patriot and State Gazette, printed at 
Concord, and also in the Dover Gazette, printed at said Do- 
ver, three weeks successively, the first publication in each 
case being more than eight weeks before said day of sale. 

Noah Porter, Collector. 
Strafford ss., February 10, 1844. Then appeared the 
said Noah Porter, and made oath that the above affidavit by 
him signed is in his belief true. Before me, 

J. P. H., Justice of the Peace. 

23. The account of the sale delivered to the town-clerk, 
may be thus : 

The following is a true account of the sales of the real 
estate of persons not resident in the town of Dover, for taxes 
assessed upon the same in said town for the year 1843, and 
which were sold pursuant to notice, at public auction, at the 
store of John Davis, in said Dover on the tenth day of Feb- 
ruary, 1844. 

Ten acres of the Weld place, bounded thus ; [here de- 
scribe the land sold] — was sold to Peter Gray, he being the 
highest bidder, for $ 4.04, to pay the taxes assessed on said 
Weld place, amounting to $1.13, and incidental charges 
amounting to $2.91, being in the whole $4.04. 

Noah Porter, Collector. 

Strafford ss., February 10, 1844. Then the said Noah 
Porter appeared, and made oath that the foregoing account 
by him signed is true. Before me, 

J. P. H., Justice of the Peace. 

24. In order to render the sale legal, the following steps 
especially should be carefully taken by the selectmen : 

I . They must make out a list in writing, signed by them, 
l* 



102 COLLECTION OF NON-RESIDENT TAXES. 

of the taxes assessed upon the real estate of persons not re- 
sident in the town ; 

II. This list must state the name of the owner, if known ; 
but if not known, the name of the original owner, if known ; 
if not known, it is better to write in the columns, " un- 
known" though not necessary. 6 N. H. R., 192. If 
known and omitted, the list is void. Ibid. 

III. The list should state the number of the lot, range and 
division, if lotted ; if not lotted, such description as the 
land may be readily known by. If the owner's name is 
known and stated, there must be also a description of the 
land. 3 N. H. R., 103. 

IV. It must state the number of acres and the amount 
of taxes ; 

V. Each tract should be described and taxed separately. 
3 N. H. R., 105. 

VI. The list must be delivered to the collector on or before 
the thirtieth day of May, or the proceedings will be illegal. 
6 N. H. R., 192. 

VII. The original invoice and list of assessments, or a cer- 
tified copy, must be left with the town-clerk on or before 
the first day of July, and recorded by him. Ch. 21 , sec. 6 ; 
6 N. H. R., 192. 

25. The following steps must be taken by the collector : 

I. He must give bond to the town, to the acceptance of 
the selectmen, for the faithful discharge of his duties. R. S., 
ch. 36, sec. 4. 

II. He must deliver to the deputy secretary of state, on or 
before the eighth day of the session of the general court in 
June of the same year, a copy of such list, certified and 
signed by him ; 

III. This list must remain with the deputy secretary until 
the second day of September, when the collector may call 
for and receive the same ; 

IV. After receiving such copy the collector may advertise 
the real estate on which the taxes are not paid, as provided 
in sec. 5. If he advertises before receiving such copy, the 
sale will be void. 3 N. H. R., 36. 

V. He shall post up a copy of the advertisement, as pro- 
vided in sec. 7. 

VI. The advertisement shall contain the same description 
of the land and taxes which is in his list, and the time and 
place of sale ; 






COLLECTION OF NON-RESIDENT TAXES. 103 

VII. The sale shall be at auction, in some public place in 
the town in which the land lies, between 10, A.M., and 6, 
P. M., and within one year from the first day of June next 
after the tax is assessed ; 

VIIT. The advertisement shall be — So much of the own- 
er's estate in each tract as will pay the taxes and incidental 
charges thereon, unless prevented by previous payment ; 

IX. The first publication in the newspapers, and the first 
posting up must be at least eight weeks before the day of 
sale ; 

X. If an adjournment is necessary, it should be by proc- 
lamation made at time and place of sale, for one day at a 
time only, and not exceeding three days in the whole ; 

XI. The property must be sold to the highest bidder, and 
the record must so appear. 6 N.H. R., 192. 

XII. Each tract shall be sold separately, and the sale shall 
be of so much of each as will pay the taxes and charges 
thereon. 3 N. H. R., 106. 

XIII. An account of the quantity of each tract sold, the 
price for which sold, the taxes and expenses of sale thereon, 
a copy of each number of each newspaper in which the 
advertisement was published, and the advertisement posted 
up, with an affidavit on it of the time and place of posting, 
shall be filed with the town-clerk within ten days after the 
sale ; 

XIV. The expenses are to be divided among all the tracts 
advertised equally ; 

XV. The collector, before or after the sale, shall receive 
of any person the tax and charges on any tract, or on his 
interest or share in any tract, and give a receipt therefor ; 
and the residue only shall be sold or foreclosed ; 

XVI. The owner may redeem any tract, or any interest 
therein, within one year next after the day of sale ; — that is, 
on or before the same day of the same month in the next 
year ; and the collector, within ten days after the day of re- 
demption expires, shall leave a list of all the lands so re- 
deemed, with the town-clerk, who shall record the same ; 

XVII. After the expiration of one year from the day of 
sale the- collector shall execute to the purchaser or his heirs, 
(not to any other person) a deed of so much of the land 
sold as is not redeemed according to law, 

26. The town-clerk shall carefully preserve and keep on 
file the account, newspapers, advertisement and affidavit, 



104 STATE AND COUNTY TAX. 

and shall record the advertisement, affidavit and account in 
the record book of the town, attested thus : A true copy 
of the original : Attest : N. G., Town-Clerk. 

Before the revision of the statutes, recording was not ne- 
cessary. 9 N. H. R. } 169. 

27. Non-resident taxes are a charge upon the property 
taxed, and cannot be collected of the owner in any way ex- 
cept by sale of the property. 1 Mass. R., 47. 

28. A collector's deed, describing " a certain tract of 
land, being part of lot No. 300, containing two hundred and 
fifty acres," is void for uncertainty. The land should be 
described by metes and bounds, or other clear description. 
1 JY. H. R., 93. 

29. For further directions and rules, see ch. 26. 



CHAPTER 25. 

OF THE STATE AND COUNTY TAX AND THE SURPLUS 
REVENUE. 

1. State tax, how collected. j 3. Surplus revenue. 

2. County tax, how collected. | 4. Duties of selectmen. 

1. The treasurer of the state shall issue his warrant to 
each town, stating the proportion of the state tax to be paid 
by that town, and the time when it is to be paid. If not 
paid accordingly, an extent against the selectmen or collector 
may be issued. R. S., ch. 10, sees. 2,3. 

2. The county tax is voted by the representatives of the 
several towns in the county, assembled at Concord in June. 
When any such tax is voted, or when an execution against 
the county is due, the county treasurer apportions the tax 
among the several towns, and issues his warrant, stating the 
amount of the tax, and the time when to be paid. If not 
paid accordingly, an extent may be issued therefor. R. S., 
ch. 23, sees. 2, 4, 5. 



GExNERAL PROVISIONS. 



105 



3. Each town is liable to repay to the state the share of 
the surplus revenue received by such town ; and for a neg- 
lect to repay, an extent may be issued. The shares of un- 
incorporated places and towns refusing to receive, are loaned 
by the state treasurer for the use of such towns or places, and 
the interest paid over. R. S., ch. 8, sees. 1, 2, 3, 4, 5, 6. 

4. Whenever any such warrant is issued by the state or 
county treasurer, the selectmen shall assess and collect the 
same as provided in the preceding chapters, or an extent 
may issue, as provided in chapter 27. 



CHAPTER 26 



GENERAL PROVISIONS CONCERNING THE ASSESS- 
MENT AND COLLECTION OF TAXES. 



1. Liability of collector limited. 

2. Collector may appoint depu- 
ties. 

Taxes are preferred claims. 
What is a " public place." 
Vote to raise money, when 
legal. 
Collector's sale, when valid. 

7. Property, if owned in com- 
mon. 

8. Assessment, when illegal. 

9. Vote to raise money, when 
legal. 

0. Power of doomage. 

1. "Wilful omission" of prop- 
erty. 
Collector must take oath. 



12 



13. Grant of taxes, how proved. 

14. Taxation of property, rule. 

15. Name of person or corpora- 
tion. 

16. Evidence of appointment, 

what. 

17. Computation of time. 

18. Arrest, when legally made. 

19. Collector's authority out of 
town. 

20. Legality of tax, how settled. 

21. Unincorporated places. 

22. Vote of money, when legal. 

23. If tax illegal, selectmen liable. 

24. Collector must give bond. 

25. Collector may resign, when. 



1. No person, to whom any list of taxes shall be com- 
mitted for collection, shall be liable to any suit or action 
by reason of any irregularity or illegality of the proceedings 
of the town or of the selectmen, nor for any cause whatever 
except his own official misconduct. R. S n ch. 45, sec. 16. 



106 GENERAL PROVISIONS CONCERNING THE 

2. Any collector, being authorized by vote of the town, 
may appoint deputies, who shall be sworn, shall give bond 
to the satisfaction of the selectmen, and shall have the pow- 
ers of collectors, and may be removed at the pleasure of 
the collector. Ibid., sec. 19. 

3. Taxes against an insolvent estate are preferred claims, 
but must be presented to the commissioner on the estate 
seasonably. R. S., ch. 162, sec. 18. 

4. A shoe-maker's shop is not a " public place," nor any 
mechanic's shop ; but houses of public worship, (in use,) 
taverns and stores, in many cases are "public places." 3 
N. H. R., 178. And the place must continue to be a 
"public" one during the time which the advertisement is 
required to be posted up. Ibid. 

5. A vote by a town " to raise such sum of money as the 
selectmen may think necessary for the support of the poor 
chargeable to this town," is valid ; but no sum can be legally 
assessed by the selectmen therefor until the sum necessary 
is actually ascertained ; 3 N. H. R., 292. So in case of a 
vote by a school district to "raise a sum of money sufficient 
to remove the school-house, and to purchase land to set the 
school-houseupon ;" when the sum necessary is ascertained 
the selectmen may assess the tax, but not before. Ibid. 

6. In order to render a sale by a collector valid, there 
must be a substantial compliance with all the requirements 
of the law. 3 N. H. R., 340. 

7. When any property advertised for sale by a collector 
is owned by the tax payer in common with others, the in- 
terest or right of the tax payer in the whole property should 
be sold, and not the whole of a particular part of it. The 
collector should not attempt to make a division of the prop- 
erty ; each owner has an interest in each parcel of the prop- 
erty. 3 N. H. R., 340. 

8. If any part of the assessment is illegal the whole is 
void, and the selectmen are liable for making it. 3 N. H. R., 
498. 

9. A vote to " raise the sum of $2,000 for the expendi- 
tures of the year," is improper, and a tax assessed therefor 
illegal. 3 N. H. R., 493. 

But an article in the warrant, " to see what sum the town 
will raise for the support of schools, of the poor, repairing 
highways and bridges, paying the just debts of the town, 
and for other legal purposes," is sufficiently explicit, and a 



ASSESSMENT AND COLLECTION OP TAXES. 107 

vote under it " to raise $2,000 for the expenditures of the 
current year, being the subject matter of the eighth article 
in the warrant, excepting for highways and bridges," is legal. 
7 N. H. R., 113, 115. It is not necessary to raise a spe- 
cific sum for each particular object, except for repairing high- 
ways when the highway tax is paid in labor, and for schools. 
7 N. H. R., 126, 127. 

10. When a person is requested by the selectmen to give 
an account on oath of his taxable property, he is bound 
to be ready to do it at once ; if he does not, he must carry 
the account to the selectmen, and if he neglects i tthey may 
doom him. 4 N. H. JR., 1 18. So if he neglects at any time 
to make oath to his invoice when requested. 7 N. H. R., 

121. So if the owner is absent when the selectmen call, 
and no invoice is given in, it is his duty to give such invoice 
to the selectmen ; if he neglects they may doom him. 8 
JV. H. R., 169. 

If the selectmen appoint a time and place for receiving 
invoices, and any person does not attend and give in his in- 
voice, he may be doomed, unless he appears afterwards and 
shews good cause for his neglect. 8 N. H. JR., 169. 

But if any invoice is given in by the owner, or any other 
person acting for him, and the selectmen receive it without 
objection, and never call upon him for another, nor give 
him notice to appear and give in another, they cannot doom 
him, nor tax him beyond such invoice, unless they discover 
property fraudulently concealed, for which they may tax 
him fourfold. 8 N. H. R., 169. 

If a person when called upon does not give in an account 
of his taxable property, but says in relation to a portion of 
it, that he is willing to be set down a certain sum, this is a 
neglect, for which the selectmen may doom. 7 N, H. R., 
113. 

And this may be done by setting down in the invoice such 
property as they suppose he possesses, stating that it is doom- 
age, and assessing the tax upon it as if he had given it in. 
7 JY. IL R., 121. 

11. When an invoice is given in, and some taxable prop- 
erty " wilfully omitted" such property is to be set down in 
the invoice at four times its value, stating also that it was 
wilfully omitted, and the tax assessed thereon. 7 N. H. R., 

122. And this may be done without any hearing before the 
selectmen. 4 N. H. R., 127. 



108 COLLECTION OP TAXES. 

12. In order to render a sale of property by a collector 
valid, it must appear by the record that he took the oath of 
office by law prescribed. 6 N. H. R., 182. " Duly sworn 
into office," is not sufficient. Ibid. So, " Qualified by F. 
Chase, Esq." is insufficient. 9 N. II R., 170. And it 
should appear that the moderator was sworn also. 7 N. H. 
R., 140. 

13. The grant of the state tax is proved by the statutes. 
The grant of the county tax must be proved by a copy of 
the record of the doings of the county convention which 
voted it, certified by the clerk of the court of common pleas. 
6N. H. R., 191. 

14. Property in a town belonging to an inhabitant, not 
given in by him, and not known to the selectmen -to be his 
property, is rightfully taxed and sold as non-resident. 6 
N. II JR., 196. 

15. The names of individuals and corporations should be 
stated correctly, and in full. But where " The Souhegan 
Nail, Cotton and Woollen Factory," was taxed as " The 
Souhegan Nail, Cotton and Woollen Corporation," it was 
held sufficient, there being no other of a similar name in 
town. 7 N. H. R., 309. 

16. The warrant of the collector may be sufficient evi- 
dence of his appointment, but a record of it by the town- 
clerk is better. 7 N. H. R., 309. 

17. In reckoning the four days which a distress must be 
kept, if it is seized on the 9th it may be advertised on the 
13th, and sold on the 15th. 7 JY. H. JR., 309. 

18. A collector is not bound to search for property, tut 
may arrest the body unless the party produces property suf- 
ficient, with indemnity as to title if required. 9N. II. R., 
190. 

19. The collector may collect any tax out of the town for 
which he is appointed, provided the person taxed removed 
therefrom after the first of April. 9 N. H. R., 194. 

20. The question, whether a tax is legally assessed or 
not, cannot be settled in a suit against the collector, because 
he is not liable even if it is not legally assessed. The action 
should be against the selectmen. 9 N. H. R., 195. 

21. The same rules apply to unincorporated places as to 
towns. R. S., ch. 38, sec. 1. 

22. Under an article in the warrant, " to see if the town 
will make an appropriation towards purchasing a fire 



OF EXTENTS. 109 

engine," the town may raise and appropriate the necessary 
sum ; but if the article had named any fund out of which 
the appropriation was to be made, a vote to raise money 
would have been illegal. 21 Pick. JR., 64. 

23. The selectmen are liable for assessing an illegal tax, 
as for building a jail, though voted by the town — 10 
Vt. R., 506 ; or repairing a meeting house more than is 
necessary for town uses — 5 Greenleaf 400. See ch. 1, '* On 
the powers of towns." A town may vote to indemnify its 
agents, and assess a tax therefor — 6 Vt. jR.,95; or for set- 
tling any disputed question in which the town is interested 
— 18 Pick. R., 565 ; or for the expenses of inoculation — 2 
Vt. #., 427. 

24. The collector must give bond, with sufficient sureties, 
to the acceptance of the selectmen, for the faithful discharge 
of his duties, within six days after his election or appoint- 
ment, or the office shall be considered vacant, and his acts 
illegal. R. S., ch. 36, sec. 4. 

25. A collector of taxes may, with the assent of the town, 
resign his office. 7 JY. H. R., 209. 



CHAPTER 27 



ON EXTENTS. 



1. Extents, who may issue. 

2. Against towns for neglects. 

3. Against selectmen. 

4. Against collectors not paying. 

5. Against collectors absconding. 

6. Treasurers not to issue,when. 

7. Extents against towns, when. 

8. Personal property, how sold. 

9. Real estate, how sold. 
10. Direction and return of ex- j 20. Form of indemnity. 

tents. 

1. The state treasurer, and each county and town treas- 
urer, may issue extents under their hands and seals respect- 
j 



11. Alias extents issued. 

12. Fees included in extents. 

13. Remedy for contribution. 

14. Remedy against selectmen. 

15. Remedy against collectors. 

16. Collector to be indemnified. 

17. Remedy of selectmen. 

18. Form of extent in section 4. 

19. Form of extent in section 5. 



110 OF EXTENTS. 

ively, in cases authorized by law ; and such extents shall be 
deemed to be executions against the person and property 
within the laws of this state relating to the levy of execu- 
tions. R. S., ch. 48, sec. 1. 

These laws may be found in the Revised Statutes, chs. 194, 
195, 196, 198, 199, and 200. 

2. Any town which shall neglect to choose proper officers 
for assessing and collecting taxes, shall be liable to an extent 
for state and county taxes ; and the same may be levied upon 
the property of any inhabitant or owner of property therein, 
if no estate of such town be found whereon to levy the same. 
Ibid., sec. 2. 

3. Selectmen who shall neglect to assess any tax for which 
they have the warrant of the state or county treasurer, at the 
time and in the manner legally prescribed therein, or who 
shall neglect to return to either of such treasurers, or to the 
town treasurer, the name of the collector to whom they shall 
commit any tax assessed by them, and payable to such treas- 
urers respectively, shall be liable to an extent. Ibid., sec. 3. 

4. Any collector to whom any tax may be committed, who 
shall neglect to pay the same to the state, county or town 
treasurer, or to the selectmen or other person to whom the 
same is payable, within the time limited in his warrant, which 
shall not be less than three months from the delivery of such 
warrant, except in cases where a shorter time shall be lim- 
ited by law, shall be liable to an extent. Ibid., sec. 4. 

5. If any collector of taxes, to whom any tax payable to 
the state or county treasurer is committed, shall neglect to 
pay the same within the time limited in his warrant, and the 
selectmen of the town shall judge that there is danger that 
such collector will abscond, or be unable to pay the same, 
they may issue an extent against such collector for the taxes 
in arrear. Ibid., sec. 5. 

6. No extent shall be issued by the state or county treas- 
urer against any collector, after notice given by the select- 
men that they have issued an extent against him as aforesaid ; 
but if such tax shall not be paid within three months from 
the time the same became payable, an extent shall be issued 
against such selectmen. Ibid., sec. 6. 

The form of such notice may be thus : 

To the Treasurer of the County of Coos. 
You are hereby notified that the subscribers, selectmen 



OF EXTENTS. Ill 

of Dalton, in said county, have issued an extent against T. 
D., collector of said Dalton for the year 1843, for his neg- 
lect to pay over the taxes committed to him to collect, 
agreeably to the orders in his warrant contained. 

N. P. ) Selectmen 
S. L. \ of 
G. H.) Dalton. 
Dalton, October 1, 1843. 

7. In every case where an extent shall be issued against 
any selectmen or collector, by the state or county treasurer, 
and sufficient property of such selectmen or collector shall 
not be found whereon to levy the same, an extent shall be is- 
sued against the town, which may be levied upon the property 
of any inhabitant or owner of property therein, if no estate of 
such town be found whereon to levy the same. Ibid., sec. 7. 

8. Personal property seized upon any extent shall be sold 
in the same manner as similar property is by law required 
to be sold on execution. Ibid., sec. 8. See cli. 194 of the 
Revised Statutes. 

9. Real estate of every kind so levied upon shall be sold, 
and a deed and return thereof made, in the manner provided 
by law for the sale of the equity of redemption of real es- 
tate subject to any mortgage ; and the owner thereof shall 
have the same right to redeem the same. Ibid., sec. 9. See 
ch. 196 of the Revised Statutes. 

10. Extents shall be directed to the sheriff, or his deputy, 
of the county where they are to be executed, and shall be 
made returnable to the officer issuing the same, at a certain 
day named therein, which shall not be less than sixty days 
from the date thereof. Ibid., sec. 10. 

11. If any extent shall be returned unsatisfied, further or 
alias extents may be issued for any sum which may remain 
due upon such return. Ibid., sec. 11. 

12. Every extent may include the legal fees and charges 
incurred upon any former extent issued for the collection of 
the same tax. Ibid., sec. 12. 

13. Every person upon whose property an extent against 
any town has been levied, shall have contribution against 
the other inhabitants, or owners of property therein, for the 
sums so levied, and for damages, and shall recover double 
costs. Ibid., sec. 13. 



112 



OF EXTENTS. 



14. Towns shall have their remedy by action against any 
selectmen or collector through whose default any extent may 
have issued, for all sums levied thereon, and for damages 
and double costs. Ibid., sec. 14. 

15. Selectmen shall have their remedy by action against 
any collector through whose default any extent shall have 
issued against them, for all sums levied thereon, and for 
damages and double costs. Ibid., sec. 15. 

16. Selectmen issuing any extent against a collector shall 
indemnify him against all costs and expenses arising to him 
by reason of any extent issued against him by the state or 
county treasurer, for the same tax. Ibid., sec. 16. 

17. Selectmen shall have no remedy against any town for 
any sum levied upon any extent issued against them on their 
own default, except the amount of tax, without any costs of 
levying, or costs of suit. Ibid., sec. 17. 

18. The form of the extent issued by the town treasurer, 
under section 4 of this chapter, may be thus : 

STATE OF NEW-HAMPSHIRE. 

Belknap ss. To the Sheriff of said County, or his deputy. 

Whereas A. B., of C, in said county, a col- 
lector of taxes for said town, duly elected 
wm^ jy (if not elected, say appointed) and sworn, 
on the fifteenth day of May last received from the select- 
men of said town a list of the assessment of a town tax 
duly voted to be raised by said town, made out by them, 
and amounting to the sum of eight hundred dollars, together 
with a warrant under their hands and seal, directing and au- 
thorizing him to levy and collect the several sums in said 
list contained, and pay the same to the treasurer of said 
town on or before the tenth day of October last ; and whereas 
the said A. B. has paid to said treasurer the sum of four 
hundred dollars only, but has neglected to pay the residue 
thereof, being four hundred dollars, as directed in said war- 
rant, but has neglected it ; 

In the name of said state you are commanded to levy the 
aforesaid sum of four hundred dollars by distress and sale of 
the real and personal estate of said collector, and pay the same 
to the treasurer of said town, returning the overplus, if 
any there be, to said A. B. ; and for want of such estate, to 
take the body of the said A. B., and him commit to the jail in 




OF EXTENTS. 



113 



said county, there to remain till he has paid said sum of four 
hundred dollars, together with your fees, or be discharged 
by due order of law ; and make return of this warrant to 
myself, or my successor, the treasurer of said town, within 
sixty days from the date hereof, with your doings thereon. 

Given under my hand and seal, this twentieth day of No- 
vember, in the year 1843. 

P. D., Treasurer of the town of C. 

19. The form of the extent issued under section 5 of this 
chapter may be thus : 

STATE OF NEW-HAMPSHIRE. 

Belknap ss. To the Sheriff of said County, or his deputy. 

-^S§fcv Whereas A. B., of C, in said county, a collect- 
J»)f) or of taxes in said town, duly appointed (or 
jsia^ x elected, if the fact is so,) and sworn, on the fif- 
teenth day of May last received from the selectmen of said 
town a list of the assessment of a county tax duly voted, 
made out by said selectmen, amounting to the sum of eight 
hundred dollars, with a warrant under their hands and seal, 
directing and authorizing the said collector to levy and col- 
lect the several sums in said list contained, and pay the same 
to the treasurer of said county, one half on or before the 
day of j and the other half on or before the first day 

of February, 1844 ; and whereas the sum of four hundred 
dollars, part of said sum of eight hundred dollars, is still un- 
paid, although the time for the payment thereof has expired, 
said collector having neglected to pay the same agreeably to 
the directions in said warrant ; and whereas, in the judgment 
of the subscribers, selectmen of said town, there is danger 
that said collector will be unable to pay the same when call- 
ed upon so to do by the county treasurer : 

In the name of said state you are commanded to levy the 
aforesaid sum of four hundred dollars by distress and sale of 
the real and personal estate of said collector, and pay the 
same to the treasurer of said county, returning the overplus, 
if any there be, to said collector ; and for want of such es- 
tate, to take the body of said collector and him commit to 
the jail in said county, there to remain till he has paid said 
sum, with your fees, or be discharged by due course of law ; 
and make return of this warrant to ourselves, or our sue- 



114 OF EXTENTS. 

cessors, selectmen of said town, within sixty days from this 
date, with your doings thereon. 

Given under our hands and seal, at said C., this sixth day 
of February, in the year 1844. 

T. P. m 

Selectmen of C. 



T. V. ) 

R. M. } 
N. O.j 



20. The indemnity mentioned in section 16 should be a 
bond in common form, with a penal sum perhaps twice as 
large as the taxes in arrear, and sufficient sureties, and a 
condition as follows : 

The condition of this obligation is such, that whereas the 
selectmen of said town of , heretofore delivered to 

the said obligee, collector of said town, a list of the assess- 
ment of a county tax, with a warrant directing him to collect 
and pay over the same to the treasurer of the county, as 
therein directed ; and whereas said selectmen have issued 
an extent against said obligee, for the amount of taxes in 
arrear : Now if we shall fully indemnify the said collector 
against all costs and expenses which may arise to him by 
reason of any extent which may be issued against him by 
said county treasurer for the same tax, then this obligation 
shall be void ; otherwise in full force. 



TITLE IV. 



OF HIGHWAYS AND BRIDGES. 

Chapter 28. Of the powers of selectmen in relation to 
laying out highways. 

Chapter 29. Proceedings of the court of common pleas 
and road commissioners. 

Chapter 30. Of the payment of damages and costs. 

Chapter 31. Of the discontinuance of highways. 

Chapter 32. Of repairing highways in towns. 

Chapter 33. Of repairing highways not in any town. 

Chapter 34. Of the liability of towns for not making and 
repairing highways, and for damages. 

Chapter 35. Of injuries to, and encumbrances and en- 
croachments on highways, and the rights 
of the public and land-owners therein. 

Chapter 36. Of bridges, rail-roads, guide-boards and the 
law of the road. 



CHAPTER 28 



OF THE POWERS OF SELECTMEN IN RELATION TO 
LAYING OUT HIGHWAYS. 



1 . Power of selectmen to lay out. 

2. Notice of hearing to be given. 

3. Notice to residents, how giv- 
en. 

4. Notice to minors and wards. 

5. To tenants and reversioners. 

6. Notice by publication, when. 

7. Examination and hearing. 

8. Not restricted by petition. 

9. May lay out over highways. 
10. Or across rivers above tide. 



11. Franchises may be taken. 

12. Return to be made, when. 

13. Damages to be assessed, how. 

14. If owner unknown, how as- 
sessed. 

15. If owner aggrieved, remedy. 

16. If owner not notified, remedy. 

17. Form of petition for public 
way. 

j 18. Form of petition for private 
way. 



116 



POWERS OF SELECTMEN IN RELATION 



19. Form of petition for altera- 
tions. 

20. Form of order of notice. 

21. Notice, how to be given. 

22. If owner unknown, affidavit. 

23. Form of laying out public 
way. 

24. Form of laying out private 

way. 



25. Form of making alterations. 

26. Proceedings all to be recorded. 

27. Duties of selectmen. 

28. Selectmen liable, when. 

29. When private way laid out. 

30. When public way laid out. 

31 . Monuments to govern. 

32. Damages, how to be estimat- 
ed. 



1. Selectmen upon petition are authorized to lay out any 
new highway, or to widen and straighten any existing high- 
way within their town for which there shall be occasion, 
either for the accommodation of the public or of the person 
applying. R. S., ch. 49, sec. 1. The selectmen will be 
confined to the objects stated in the petition, and cannot 
lay out or alter a road in a manner different from that prayed 
for, except as to width, and except also as provided in sec- 
tion 8. 

The word " highway" or road in any statute includes 
the bridges thereon. R. S., ch. 1, sec. 21. 

2. Unless the selectmen shall be clearly of the opinion that 
the petition ought not to be granted, they shall appoint a 
time and place of hearing, and shall cause notice thereof in 
writing to be given to the first petitioner, and to the owner* 
of the land over which the same may pass, fourteen days 
previous thereto. R. JS., ch. 49, sec. 2. 

3. Such notice shall be given to each owner in person, 
or left at his usual place of abode, if he is known and re- 
sides in the state — otherwise to the person, if any, who has 
the care or possession of the land. Ibid., sec. 3. 

4. If the owner is a person under guardianship, notice 
shall be given in the same manner to his guardian. If such 
owner is a minor, or person under any legal disability, the 
judge of probate may appoint a guardian for such person, 
to whom notice shall be given. Ibid., sec. 4. 

5. Tenants for life or years, and the owners of the re- 
mainder or reversion, shall each be separately notified as 
aforesaid. Ibid., sec. 5. 

A tenant for life is one who has an interest in the land 
for his own life or the life of some other person. A tenant 
for years is one who holds land under a lease for any fixed 
period, though less or more than one year. Owners in re- 
mainder or reversion are those who own the land after the 
estate for life or years is ended. The husband's interest in 



TO LAYING OUT HIGHWAYS. 117 

lands owned by his wife, and a widow's right of dower, are 
estates for life. 

6. Upon affidavit of one of the petitioners that the owner 
of any land over which such road may pass, or his resi- 
dence, is unknown or uncertain, such notice may be pub- 
lished three weeks successively in some newspaper printed 
in the vicinity, which shall be sufficient notice. Ibid., sec. 6. 

Such notice will be good only where the owner or his 
residence is unknown or uncertain. It should be ordered 
by the selectmen upon the affidavit of a petitioner. For 
form, see section 22. 

7. At the time and place so appointed the selectmen shall 
make a personal examination of the several routes proposed, 
and of the highways for which such new highway is designed 
to be a substitute ; shall hear all parties interested who may 
attend, and any evidence they may offer, and may adjourn 
as they see cause. Ibid., sec. 7. 

8. Such selectmen may lay out such new road over any 
ground they may deem most suitable, and widen and straight- 
en any highway, as they judge proper, without regard to any 
intermediate limits or particular amendments described in 
the petition. Ibid., sec. 8. 

The selectmen must lay out the road, if at all, on the 
best route between the beginning and end described in the 
petition, but are not confined to any particular route, even 
if one is described by bounds, courses and distances. 

9. Upon any petition for a new highway, they may lay 
out the same across or over any existing highway ; but no 
damages shall be awarded when the public have the same 
right of way, except for additional land taken. Ibid., sec. 9. 

10. Highways may be laid out across any river or stream, 
except navigable tide waters ; but no road or bridge shall 
be so constructed as to prevent the use of such stream or 
river for boats or rafts, and for running timber. Ibid., sec. 1 0. 

11. Any real estate, franchise or easement of any corpo- 
ration may be taken for a highway, in the same manner as 
the real estate of individuals. Ibid., sec. 11. 

Without this provision neither selectmen nor courts pos- 
sess any such power. 8 N. H. R., 398. 

12. The selectmen shall within thirty days make a re- 
turn of every highway by them laid out, describing the same 
and the width thereof, and a like return of alterations by 
them made in existing highways, with a particular descrip- 



118 POWERS OF SELECTMEN IN RELATION 

tion thereof, and cause the same to be recorded by the town- 
clerk. Ibid., sec. 12. 

13. Such selectmen shall assess the damages sustained 
by each owner of the land required for such highway, and 
insert the same in their return. Those of the tenant and 
remainderman or reversioner shall be assessed separately. 
Ibid., sec. 13. 

14. If the person to whom any damages should be award- 
ed is unknown, a particular description of the land, real es- 
tate or franchise taken for any highway shall be inserted in 
the return of the selectmen, with the damages assessed to 
the owner, without naming any person. Ibid., sec. 14. 

15. If any person shall think himself aggrieved by the 
assessment of damages made by the selectmen, he may, with- 
in one year after such road is opened, petition the court of 
common pleas for redress ; and the said court, after due no- 
tice to the town and others interested, may award such dam- 
ages as may be just, and costs, to either of the parties in their 
discretion, and issue execution therefor. JR. S., ch. 50, sec. 9. 

16. Any person who had no actual notice of the laying 
out or altering of any highway, may, within one year after 
the same shall be opened and made, apply to said court, as 
provided in the preceding section, and the court, after no- 
tice as aforesaid, shall award damages and costs, and issue 
execution therefor, as is therein provided. Ibid., sec. 10. 

17. The form of the petition for a highway for the ac- 
commodation of the public may be : 

To the Selectmen of the town of Peterborough, in the County 
of Hillsborough. 

Your petitioners represent that for the accommodation of 
the public there is now occasion for a new highway in said 
town, beginning at or near the school house in district No. 
3, and thence running southerly to a stake and stone in the 
road near the house of John Smith, in said town : 

Therefore we respectfully request you to lay out, on the 
route above described, a highway of the width of four rods, 
and to cause a record thereof to be made, according to law. 

James Moore, &c. 

The petition must set out the beginning and end of the 
new road distinctly, but should not state the intermediate 
bounds. If the route begins and ends in the same old high- 
way, the selectmen under the above petition may make 



TO LAYING OUT HIGHWAYS. 119 

alterations in the old highway between those points, or lay 
out a new highway. 

18. The form of a petition for a highway for the accom- 
dation of the persons applying, may be the same as in the sec- 
tion preceding, erasing the words, " for the accommodation 
of the public," and inserting instead— -fm their accommo- 
dation. 

19. The form of a petition for widening and straightening 
a highway may be : 

To the Selectmen of the town of Peterborough, in the County 
of Hillsborough. 

Your petitioners represent, that for the accommodation 
of the public there is occasion that the highway in said 
town, leading from to should be made wider 

and straighter : 

We therefore respectfully request you to make said high- 
way wider and straighter, and to cause a record of such al- 
terations to be made, according to law. 

James Moore, &c. 

20. The form of the order of notice on such petition 
may be : 

On the foregoing petition it is ordered that the petitioners 
give notice to all the owners of lands through which the pro- 
posed highway may be laid out, to appear at the house of 
James Moore, in said Peterborough, on Thursday, the twen- 
tieth day of June instant, at nine o'clock in the forenoon, 
and shew cause, if any they have, why said petition should 
not be granted, by giving to each of said owners, or leaving 
at his usual place of abode, a copy of said petition and of 
this .order thereon, at least fourteen days previous to said 
time of meeting. 

Given under our hands this first day of June, 1843. 

A. B. \ Selectmen 
C. D. \ of 

E. F. j Peterborough. 

21. It is the duty of the petitioners to see that due no- 
tice is given, and such notice may be given by any person. 
If the owner resides in this state he must be notified per- 
sonally ; if he resides out of the state notice may be given 
to the person, if any, occupying or having the care of the 
land. If the owner has a guardian he must be notified ; 
but if he is under any disability and has no guardian, 



120 POWERS OF SELECTMEN IN RELATION 

application should be made to the judge of probate to 
appoint a guardian. Every owner must be notified, or 
the laying out will be illegal ; and it is prudent to notify 
the owners of lands on either side over which the road may 
possibly be laid out. If the owner or his residence is un- 
known, notice is to be given as in the next section. The 
notice given must be a copy of the petition and order of no- 
tice, and should be attested by the person giving the notice, 
thus : A true copy of the original. Attest : A. B. 

The form of the certificate of notice, to be written on 
the back of the petition, may be : 

I, A. B., certify that on the second day of June, 1843, I 
gave to D. E., G. H. and L. M. each a true and attested 
copy of the within petition and of the order of notice there- 
on, and on the third day of June, 1843, 1 left a like copy at 
the dwelling house of K. G. and D. P. respectively, being 
their respective usual places of abode. A. B. 

Hillsborough ss., June 20, 1843. Then the said A. 
B. appeared and made oath that the foregoing certificate by 
him signed is true. Before me, 

J. W., Justice of the Peace. 

22. The form of the affidavit in section 6, may be thus : 

I, James Moore, one of the petitioners named in the within 
petition, do testify that the owner of a lot of land, lying on 
the route within described, between the land of and 

the land of , is unknown, so that personal notice can- 

not be given. James Moore. 

Hillsborough ss., June "2, 1843. Then appeared the 
said James Moore, and made oath that the above affidavit by 
him signed is true. Before me, 

J. W., Justice of the Peace. 

The order of the selectmen thereon may be thus : 

Ordered that the within petition and order of notice be 
published in the , printed at , in said 

county, three weeks successively before the twentieth day 
of June instant. 

A. B., &,c, Selectmen of Peterborough. 

The affidavit that such notice has been published may be 
made on the petition, thus : 

Hillsborough ss., June 20, 1843. Then appeared the 
said James Moore, and made oath that the within petition 
and order of notice has been duly published as within direct- 
ed. Before me, J. W., Justice of the Peace. 



TO LAYING OUT HIGHWAYS. 121 

23. The form of laying out a road for the accommodation 
of the public may be as follows : 

Upon the foregoing petition the subscribers, selectmen of 
said Peterborough, having given notice as aforesaid to all 
persons owners of or interested in lands through which the 
highway hereinafter described is laid out, to appear at the 
house of James Moore, in said Peterborough, on Thursday, 
the twentieth day of June instant, at nine o'clock in the 
forenoon, to shew cause, if any they had, why said petition 
should not be granted ; and having met at said time and 
place, and fully heard all parties interested who attended, 
and all evidence offered by them, and having made a per- 
sonal examination of the several routes proposed, and of the 
highways for which such new highway is designed to be a 
substitute, and having duly considered said petition, are of 
opinion that there is occasion for a new highway on the route 
described in said petition. 

We therefore lay out the same as follows : Beginning at 
a stake in the highway near the school-house in district No. 
3, in said Peterborough ; thence south eight degrees east, 
through land of James Moore, forty rods, to a stake ; thence 
south six degrees west, through land of said Moore, twenty 
rods, to a stake ; thence south six degrees west, through land 
the owner of which is unknown, fifty rods, to a stake ; thence 
south twelve degrees west, through land of John Smith, thirty 
five rods, to a stake in the road near the house of said Smith. 
The line above described is to be the middle of the highway, 
and the highway is to be four rods wide. 

We award to the owners of lands taken for said highway 
on said route the following sums, to be paid by said town : 

To James Moore, Eighty dollars. 

To the unknown owner of the land above 
described, lying southerly of and adjoin- 
ing land of said Moore, Sixty dollars. 

To John Smith, Fifty dollars. 

Given under our hands at Peterborough, this twentieth 
day of June, 1843. 

A. B. | Selectmen 

C. D. \ of 

E. F. ) Peterborough. 

24. The form of the laying out of a way for the accom- 
modation of the petitioners may be the same as that in the 
section preceding, except as follows ; after the words, " the 



122 POWERS OF SELECTMEN IN RELATION 

highway is to be four rods wide," add the following ; and to 
be made by the petitioners, and to remain a highway so long 
as said petitioners shall keep the same in repair, and no 
longer. Also omit the words, " to be paid by said town," 
and add instead — to be paid by the petitioners before this 
laying out is recorded. 

25. The form of the record in case of widening and 
straightening a highway, may be like that in sec. 23, omit- 
ting the words, " occasion for a new highway on the route 
described," and adding instead — occasion for widening and 
straightening the highway. 

26. The return of the laying out and of alterations should be 
annexed to the petition, and the whole presented to the town 
clerk within thirty days after such laying out. The petition, 
order of notice, affidavits of service, affidavit that any owner 
is unknown, if any, and the order of notice and affidavit of 
publication thereof, and the selectmen's return, must be re- 
corded by the town-clerk in the book of records, and attest- 
ed by him thus : 

A true copy of the original. Attest : D. P., Toion-clerk. 

The original should also be preserved and kept on file by 
him among the town papers. 

27. Selectmen derive their authority to lay out highways 
from the statute, and in exercising the authority they must 
substantially pursue the directions of the statute ; otherwise 
their doings will be void. 3 N. H. R., 337. 

Selectmen have authority to lay out highways only in cases 
where a petition in writing is presented to them for that pur- 
pose. 3 N. H. R., 338. 

The width of the road laid out must be stated in the re- 
turn distinctly, but if omitted by mistake it may be added to 
the return afterwards. If not so stated, an action for dam- 
ages will lie for building the road. 3 N. H. R., 10. If 
not stated, half of the road will be presumed to be on each 
side of the line of the road described, but it should be dis- 
tinctly stated. 4 N. H. R., 524. 

And the laying out will be void, unless damages are 
awarded to every owner of land taken for such highway, 
and such damages stated in the return of laying out. 3 
N. H. R., 338. 

And unless it appear that the owner was duly notified 
and had an opportunity to be heard. Ibid. 

But if laid out through the land of an individual at his 



TO LAYING OUT HIGHWAYS. 123 

request, there need be no petition, notice or award of dam- 
ages. 4 N. II. J?., 520. 

The power of selectmen in laying out highways is not 
judicial — 6 N. H. R., 524 ; but the power of the court of 
common pleas is so. Ibid. 

28. If selectmen should lay out a road, not because the 
public convenience and necessity require it, but for other 
purposes which may be injurious to individuals, their acts are 
illegal, and they are answerable for damages ; as for laying 
out a road round a turnpike gate merely to enable travellers 
to evade the payment of toll. 2 N. II R., 199 ; 5 JY. H. R., 
561. 

29. "Under what circumstances a highway may be laid 
out to accommodate an individual, is not settled. A case 
of strong necessity alone can furnish a proper occasion for 
such a highway, and justify the taking of the land of one 
individual against his will for the accommodation of another 
individual ;" 5 N. H. R., 560 ; but such a way when laid 
out is a public highway. 3 N. H. R., 459. 

30. " In determining the question when an occasion for 
laying out a highway for the accommodation of the public 
exists, there are three things to be considered ; 1st. The 
public necessity and convenience ; 2d. The burden that is 
to be imposed upon the town in making and keeping it in 
repair ; 3d. The rights of individuals whose lands may be 
taken for the purpose. And the rule is, that when the public 
exigency is such, that it will justify the taking of the lands of 
individuals without their consent for this purpose, and will 
also justify the imposition of the burden upon the town of 
making the road and keeping it in repair, then there is oc- 
casion for a highway, and the rights of individuals must 
yield." 5 N. H. i?., 560. If the road is laid out for any 
other reason, the laying out is illegal. Ibid. 

As if it is laid out because the petitioners offer to pay 
a part of the expense— 5 N. H. R., 562; or to build a 
part of the road — 2 Pick. R., 547 ; but after the road is 
laid out the town may receive donations. 5 N. H. R., 562. 

31. In the laying out of a road, monuments must govern 
rather than courses and distances — 8 N. H. R., 476 ; and 
the testimony of the committee of the location of a monu- 
ment which is gone, as " a stake," is admissible. Ibid. 

32. In estimating the damages occasioned to any person 
by the laying out of a highway, the value of the lands taken, 



124 PROCEEDINGS OF COURT OF COMMON PLEAS. 

the expense of fencing against the road, and the damage 
done to the land remaining in any way, are to be taken into 
consideration ; and from the amount is to be deducted the 
benefit of the road, if any, to the owner of the land. Some- 
times the injury may be great, as by cutting off water, &c, 
when he should have liberal damages ; and sometimes the 
road may in fact be a benefit to him, in which case he is 
entitled to little or no damages ; but this should be so stated. 
5 Mass. R., 435; 9 Mass. R., 388. 

The owner may release his claim to damages before the 
selectmen, and such release should be stated in their return, 
and will be binding. 15 Pick. R-,81. 



CHAPTER 29. 

PROCEEDINGS OF THE COURT OF COMMON PLEAS 
AND ROAD COMMISSIONERS. 

1. Power of court of common j 3. Duty of road commissioners, 
pleas to lay out road, when. 4. Grade of road, how prescrib- 

2. Notice, how to be given. ed. 

1. Petitions relative to roads may be presented to the 
court of common pleas in term time, or to the clerk in va- 
cation, in the following cases : 

1. Whenever the selectmen shall neglect or refuse to lay 
out, or to widen and straighten a highway in their town ; 

II. When there shall be occasion to lay out a highway 
over land not in any town ; 

III. When there shall be occasion to lay out or widen and 
straighten a highway over lands in two or more towns, one 
of which is in the county where the petition is presented ; 

IV. Whenever any town shall discontinue any highway 
laid out by the selectmen within two years from the time of 
such laying out. R. S., ch. 50, sec. 1. 

2. Upon the filing of such petition with the clerk of the 



OF THE PAYMENT OP DAMAGES AND COSTS. 125 

court in vacation, or with the court in term time, the clerk 
shall issue an order of notice to one of the petitioners, with 
a copy of said petition, returnable to the next term of the 
court : and said petitioners shall cause a certified copy of 
the same to be given to or left at the usual place of abode 
of one of the selectmen and the town-clerk of each of the 
towns through which such road may pass, thirty days before 
the next term of said court. Ibid., sec. 2. 

3. All such petitions shall be referred to the road com- 
missioners, who shall appoint a time and place of hearing 
thereon, give notice thereof to the selectmen and town-clerk 
of the towns through which such road passes, make exam- 
ination and hear all parties, and make a report of their do- 
ings to the court. They shall assess the damages to each 
owner, and insert the same in their report, stating such dam- 
ages in each town separately, and shall certify the damages 
awarded to such owners to the town-clerk fourteen days be- 
fore the sitting of the court to which their report is return- 
able. R. $., chs. 50, 51. 

4. The road commissioners may prescribe in their report 
the grade, or rise and fall to the rod, of any highway by 
them laid out, or of any existing highway for which a pro- 
posed highway not laid out might be a substitute ; and their 
report being accepted, if any town shall neglect to make 
such highway in conformity thereto, such town may be in- 
dicted and fined as for a neglect to make or repair high- 
ways. R. £., ch. 51, sec. 9. 



CHAPTER SO. 

OF THE PAYMENT OF DAMAGES AND COSTS. 

1. Damages paid before road I 7. Damages, by whom to be paid, 
made. 8. County may pay part, when. 

2. What cases excepted. 9. Costs paid by county, when. 

3. Damages recovered by action, i 10. Costs paid by towns, when. 

4. If road discontinued, limited. | 11. Damages not recovered back. 

5. Actual loss recovered only, j VZ. Petitioners to share costs. 

6. Fine, proceedings in case of. | 

1. No new highway or alteration in any highway shall be 
k * 



126 OF THE PAYMENT OF DAMAGES AND COSTS. 

made by any town, until the damages awarded to the own- 
ers of land or other estate taken therefor shall be paid, 
except in cases provided by law. R. S., ch. 52, sec. 1. 

2. If the owner of such land or real estate is a minor or 
insane, and has no guardian, or resides out of the state, 
or is unknown, such new highway or alteration may be 
made without tender or payment of their damages. Ibid., 
sec. 2. The damages should be ready, however, to be paid 
on demand. 

3. If any highway or alteration therein, shall be laid out 
and established, any person to whom any damages shall be 
awarded may recover the same, with interest, from the per- 
son or town liable to pay the same, in case the same shall 
not be paid to him within thirty days after the same shall be 
demanded. Ibid., sec. 3. 

4. All actions to recover damages awarded for lands taken 
for highways which may be discontinued, shall be brought 
within six months from the time of such discontinuance, and 
not afterwards. Ibid., sec. 4. 

5. In actions for the recovery of damages for lands taken 
for highways, only the amount of the actual loss or damage 
shall be recovered, in case such highway has been discon- 
tinued. Ibid., sec. 5. 

6. If a fine shall be imposed upon any town for not mak- 
ing or altering any highway, and an agent shall be appointed 
to superintend the making thereof, the court on motion may 
issue execution against such town for the damages awarded 
to any land-owner, and such highway may be made or alter- 
ed without payment or tender thereof. Ibid., sec. 6. 

7. Damages assessed upon the laying out of any highway 
for the accommodation of individuals, shall be paid by them. 
Those assessed upon the laying out or altering of any high- 
way for the accommodation of the public, shall be paid by 
the town in which the land taken for such highway shall lie. 
Ibid., sec. 7. 

8. The court of common pleas, if they deem the expense 
of laying out any new highway, paying the damages and 
building the same, unjustly burdensome to any town, may 
order a part, not exceeding one half such expenses, to be 
paid by the county ; and may draw an order on the county 
treasurer in favor of such town therefor. Ibid., sec. 8. 

The form of a petition for such an allowance may be as 
follows ; 



OF THE PAYMENT OF DAMAGES AND COSTS. 127 

To the Honorable Justices of the Court of Common Pleas 
for the County of Hillsborough. 

The subscribers, selectmen of the town of Hancock, in 
said county, in behalf of said town, respectfully represent, 
that a new highway has been laid out in said town by the road 
commissioners of said county, on the petition of A. B. and 
others, filed in this court, and that the expense of laying out 
said highway, paying the damages and building the same is 
unjustly burdensome to said town. They therefore pray 
your Honors to order such a part of said expense as may 
be reasonable to be paid to said town out of the county treas- 
ury, and for such relief as is provided by law. 

D. P. ) Selectmen 
L. C. \ of 

E. W. jr. j Hancock. 
An allowance may be made where the highway is laid 

out by the selectmen. In such case the petition may be like 
the foregoing, omitting the words, " road commissioners of 
said county," and inserting instead — selectmen of saidtoicn. 

9. The costs of laying out and of widening and straight- 
ening highways from town to town, or through land not in 
any town, shall be paid by the county. Ibid., sec. 9. 

10. The costs of laying out and of widening and straight- 
ening any highway in any town, shall be paid by the town, 
except such part thereof as the court of common pleas may 
order to be paid by the county. Ibid., sec. 10. See sec. 8, 
of this chapter. 

11. If the land-owner has received his damages, the 
money cannot be recovered back by the town, although the 
road is never made. 4 N. H. R., 517. 

12. All the petitioners for a road are liable to pay the ex- 
penses incurred in endeavoring to procure it laid out ; and 
if one acts as agent, the rest are liable to him for their pro- 
portion. 8 N.H.R., 182. 



128 



CHAPTER 31 



OF THE DISCONTINUANCE OF HIGHWAYS. 



4. Effect of discontinuance. 

5. Damages, when recoverable. 



1. Town may discontinue road. 

2. Discontinuance, when valid. 

3. Damages thereby to be paid. 

1. Any town, at a legal meeting holden for the purpose, 
may discontinue any highway in such town. R. S.,ch.54, 
sec. 1. 

In order to make such a vote legal, an article for that pur- 
pose must have been inserted in the warrant for the town 
meeting, the form'of which may be thus : 

To see if the town will vote to discontinue the new high- 
way laid out in said town by the road commissioners of said 
county, on the petition of James Moore and others. 

The record of the vote of discontinuance may be thus : 

Voted, to discontinue the new highway laid out in this 
town by the road commissioners of this county, on the pe- 
tition of James Moore and others. 

If the road was laid out by the selectmen, omit the words, 
" road commissioners of said county," and insert instead — 
selectmen of said town. 

2. No vote of discontinuance shall be effectual, without the 
consent of the court of common pleas, if such road was not 
laid out by the selectmen, or if it was laid out by the select- 
men during the pendency of any petition in the court of 
common pleas for the laying out thereof, or if an indictment 
or information is pending against such town for neglect to 
make or repair such highway. Ibid., sec. 2. 

In such case the selectmen, in behalf of the town, should 
immediately petition the court of common pleas for leave to 
discontinue such highway, setting forth in the petition the 
vote of the town. 

3. If any person is injured by the discontinuance of any 
highway, he may petition the court of common pleas for re- 
dress ; and the court, after due notice to others interested, 
may award such damages and costs as may be just, and issue 
execution therefor against the town. Ibid., sec. 3. 

This is a new provision in our laws ; but it seems reason- 



OF REPAIRING HIGHWAYS. 



129 



able that if the public good requires a road to be discontin- 
ued, and any individual is injured thereby, he should be re- 
compensed. The injury is often greater in such case than 
in laying out a new road. 

4. " When a highway is legally discontinued the public 
right of passage ceases, the duty of the town to keep it in 
repair no longer exists, and the owner has his land again 
free from the incumbrance." 4 N. H. R., 518. 

5. Although a highway is discontinued before it is opened 
or worked, or any contract is made to work it, yet a person 
who sustains damages by reason of such discontinuance is 
entitled to recover such damages. 3 Metcalf R., 558. 



CHAPTER 32. 



OF REPAIRING HIGHWAYS IN TOWNS. 



1. Highway tax, how raised. 

2. Prices of labor, how fixed. 

3. Surveyors, how chosen or ap- 
pointed. 

4. Districts to be limited; sur- 

veyor's warrant. 

5. Notice to work to be given. 

6. Notice on sudden emergency. 

7. Tax levied by distress, when. 

8. Excuse may be made, when. 

9. Account rendered by survey- 

ors. 

10. Extent for neglect, when. 

11. Tax worked in other districts. 

12. Tax may be raised in money 
and expended, how. 

13. Collector's power in that case. 

1. Every town, at their annual or other meeting, shall 
raise such sum of money as they may judge necessary for 
making and repairing the highways and bridges therein for 
that year, and the same shall be assessed on polls and es- 



14. Timber, &c, to be purchased. 

15. Gravel, &c, how removed. 

16. Tax not needed in district, 
where worked out. 

17. Time of travelling allowed. 

18. Expense of repairs paid by 
county, when. 

19. Such expense, how paid. 

20. Surveyors' districts, limits. 

21. Form of surveyor's warrant. 

22. Proceedings on distress. 

23. Power of surveyors. 

24. What is a legal choice. 

25. If road out of repair, notice. 

26. If no highway districts. 

27. Road may be levelled, when. 



130 OF REPAIRING HIGHWAYS. 

tates, in the same manner as state taxes are by law assessed. 
R. S.,ch. 55, sec. 1. See ch. 21, " Of the assessment of 
taxes." 

2. The town may determine the prices to be allowed for 
labor, utensils and materials applied in repairing highways ; 
otherwise such prices shall be fixed by the selectmen. Ibid., 
sec. 2. 

The prices allowed for labor, utensils and materials should 
be inserted in the surveyors' warrants. 

3. The town may choose as many surveyors of highways 
as they shall judge proper, who shall enter on their duties 
on the first day of May ; and in case no election shall be 
made, the selectmen shall appoint such surveyors. Ibid., 
sec. 3. 

The form of such appointment may be : 

STATE OF NEW-HAMPSHIRE. 

To A. B., of C, in the County of Carroll. 

Whereas there is a vacancy in the office of surveyor of 
highways in district No. 2, in said town, for the year 1843 ; 
we, the subscribers, selectmen of said town, do hereby ap- 
point you surveyor of highways for said district, and you 
are to possess all the powers and execute all the duties by 
law appertaining to said office. 

Given under our hands this twentieth day of April, 1843. 
D. P., &c, Selectmen of C. 

4. The selectmen, on or before the first day of May, shall 
limit the several surveyors' districts, and give to each a list 
of the several persons in his district, with the highway tax 
assessed to each, and a warrant to collect the same. Ibid., 
sec. 4. 

5. Every surveyor shall give personal notice to, or leave 
a notice at the usual place of abode of each person named 
in his list, of the amount of his tax, and of the time when, 
the place where, and the tools with which he shall attend to 
work out his tax, four days before the time appointed, and 
may require any person to work any part of his tax, not ex- 
ceeding one half, in the labor of oxen or horses. Ibid., 
sec. 5. 

6. In cases of sudden emergency, which may require im- 
mediate remedy, the surveyor may give such notice to any 
person to attend forthwith. Ibid., sec. 6. 



OF REPAIRING HIGHWAYS. 131 

7. If any person so notified shall neglect or refuse to at- 
tend in person, or by one or more suitable laborers, the sur- 
veyor shall levy the delinquent's tax by distress, in the 
same manner as collectors may levy and collect the state tax. 
Ibid., sec. 7. 

For directions how to proceed in such case, see chs. 23 
and 26. 

8. If any delinquent shall, within four days after the time 
so appointed, render to the surveyor a sufficient excuse for 
his neglect, he shall be notified to work at some other time. 
Ibid., sec. 8. 

9. Every surveyor shall render an account of the tax to 
him committed, and pay over the balance not expended on 
the highways, to the selectmen, agreeably to the requirement 
of his warrant. Ibid., sec. 9. 

10. If any surveyor shall neglect to render such account 
and pay over such balance, the selectmen may proceed with 
such surveyor in the same manner they may by law proceed 
with collectors of taxes who are delinquent in collecting 
and paying over the taxes committed to them to collect. 
Ibid., sec. 10. 

This proceeding is by issuing an extent. See ch. 27. 

11. The selectmen may order any surveyor to cause the 
taxes then due on his list, to be worked out in any other dis- 
trict in which the taxes from any unforeseen accident shall 
be found insufficient ; and if the taxes then due shall be in- 
sufficient, the selectmen shall cause the road or bridge af- 
fected by such accident to be put in repair at the expense of 
the town. Ibid., sec. 11. 

This order may be as follows : 

To A. B., Surveyor of Highways in District No. 1, in 
the Town of Gojfstown. 
You are hereby required to cause the sum of fifty dollars, 
part of the taxes on the list of highway taxes committed to 
you, to be immediately worked out and expended on the 
highways in district No. 3, in said town, under your direc- 
tion, according to law. 

C. D., &,c, Selectmen of Gojfstoivn. 

12. Any town may order any highway tax, then voted to 
be raised, to be collected by the collector of taxes in money ; 
and such tax shall be paid over to the treasurer or select- 



132 OF REPAIRING HIGHWAYS. 

men, and expended in repairing the highways, under the di- 
rection of the selectmen or surveyors of highways, as the 
town may direct. Ibid., sec. VH. 

13. The collector of taxes shall have the same powers 
and be subject to the same duties in relation to any tax so 
voted, as he has in relation to the state tax. Ibid., sec. 13. 

14. Surveyors of highways shall purchase all such timber, 
plank and other materials as are necessary for repairing the 
highways and bridges in their respective districts, at the 
cost and charge of the town. Ibid., sec. 14. 

15. Every surveyor shall have power within his district 
to remove any gravel, sand, rocks or other materials from 
the travelled part of any highway therein, without damage 
or injury to the adjoining land, to any other part of the 
highway in said district, for the purpose of repairing and 
grading the same ; but he or those under him shall not for 
any purpose make an uncovered trench or ditch by the side of 
the travelled part of any highway next and opposite to any 
dwelling-house or yard situate thereon, or in any way ob- 
struct the passage to and from the same. Ibid., sec. 15. 

16. Whenever the whole tax in any surveyor's list is not, 
in the opinion of the selectmen, needed for repairing the 
highways in his district, they may direct the surveyor to 
cause the same to be worked out in any other district. Ibid., 
sec. 16. 

The order may be the same as in sec. 11. 

17. The surveyor shall allow every person resident in his 
district performing labor or service on the highways, for the 
time necessarily occupied in travelling from his home to the 
place where such labor is performed, and in returning there- 
from. Ibid., sec. 17. 

18. The court of common pleas, upon petition, may or- 
der any part of the expense of repairing any highway to 
be paid from the county treasury, in case they shall judge 
the expense of such repairs to be unjustly burdensome to 
such town, or in case the county convention shall be of 
opinion that any part of such expense should be paid by the 
county. Ibid., sec. 18. 

The form of such petition may be as follows : 
To the Honorable Justices of the Court of Common Pleas 
for the County of Coos. 
The subscribers, selectmen of the town of D., in said 



OF REPAIRING HIGHWAYS. 133 

county, in behalf of said town respectfully represent that the 
expense of keeping in repair the highway in said town, lead- 
ing from to , is unjustly burdensome to said town of D. 
We therefore request your Honors to order such part of 
said expense as may be reasonable, to be paid to said town 
of D. from the county treasury, or that such highway may 
be put in repair by said county. 

A. B., &,c, Selectmen of D. 

19. The court may direct such sum as they may order to 
be paid by the county, to be paid to the town, or may cause 
such highway to be put in repair in such manner as they 
may think proper, and may draw their order for said sum 
upon the county treasurer. R. S., ch. 55, sec. 19. 

20. The limits of surveyors' districts should be fixed by 
the selectmen, signed by them and recorded in the town 
books on or before the first day of May. 

The form may be as follows : 

We the subscribers, selectmen of the town of P., hereby 
fix the following limits to the several surveyors' districts in 
said town : 

District No. 1 shall embrace all the highways and bridges 
within the following limits : from the house of A. B. by the 
house of C. D., to the town line ; also the road leading from 
said road, by the house of E. F., to the road leading from 
said P. to H. District No. 2 shall embrace, &c, &c. 

A. B., &c, Selectmen of P. 

If the selectmen make no alteration in the limits last re- 
corded, the record may be : 

We the subscribers, selectmen of the town of P., hereby 
fix and assign the same limits to the several highway sur- 
veyors' districts in said town as have been heretofore assign- 
ed to the same respectively. 

A. B., &c, Selectmen of P. 

21. The form of the surveyor's warrant may be : 

STATE OF NEW-HAMPSHIRE. 
Merrimack ss. To Peter Jones, surveyor of highways for 
district No. lj in the toimi of Bow, in said County, for the 
year eighteen hundred forty -three. 
In the name of said state you are required 
to give personal notice to each person named 
in the list herewith committed to you, or 
leave a written notice at his usual place of abode, of the 

L 




134 OF REPAIRING HIGHWAYS. 

amount of his tax, and of the time when, the place where 
and the tools with which he shall attend to work out his tax, 
four days before the time appointed ; and to cause said taxes 
to be worked out upon the highways in said district, under 
your direction, until said persons have paid respectively the 
sums set against their names in said list, at the following 
prices : 

(Here insert the price of labor, tools, &c, as fixed by the 
town or by the selectmen.) 

And you are to cause said taxes to be applied to the re- 
pair of the highways in said district at the times when 
and places where it may be most usefully applied, and may 
require any person to work out any part of his tax, not ex- 
ceeding one half, in the labor of oxen or horses. The lim- 
its of your said district are as follows : (Here insert the 
limits of the district.) 

And if any person named in said list, having had four days 
notice to work as aforesaid, shall neglect or refuse to attend in 
person or by one or more suitable laborers, and shall not 
within said four days render to you a sufficient excuse for 
his neglect, you are to give a written notice of the amount 
of his tax to such person, or leave a like notice at his usual 
place of abode. If the same is not paid within fourteen 
days after such notice, you are to collect the same by distress 
and sale of the goods of the person so neglecting ; but in 
case you have good reason to believe that such person is 
about to remove from town, you may distrain within said 
fourteen days. In no case, however, are you to make dis- 
tress of any person's tools or implements necessary for his 
trade or occupation, nor of his military uniform, arms and 
equipments, nor of utensils of household necessary for up- 
holding life, nor of bedding or apparel necessary for him or 
his family. And for want of goods or chattels whereon to 
make distress, you are to take the body of any person so 
neglecting or refusing to pay, and him commit to the com- 
mon jail in the county, there to remain until discharged by 
due course of law. 

You are to keep any such distress four days (unless the 
tax and charges shall be sooner paid,) at the cost of the 
owner ; and if the tax, cost and charges are not then paid, 
you are to post up in two or more public places in the town, 
twenty-four hours at least before the time of sale, a notice of 
the place, day and hour of the sale, with a particular de- 



OF REPAIRING HIGHWAYS. 135 

scription of the property to be sold. Such sale shall be 
within the town where the distress is made, within forty- 
eight hours after the expiration of the four days, and be- 
tween the hours of ten in the forenoon and six in the after- 
noon ; and you are then and there to sell the same at public 
auction to the highest bidder. You are also immediately 
after such sale to deliver or have ready to deliver on request 
to the owner of the property sold, a particular account in 
writing of his taxes, your fees, the charges of keeping and 
sale, and the amount of sale of each article sold, with the 
overplus, if any, after deducting said tax and charges. 

And you are to settle your accounts with and pay over any 
balance in your hands, if any, to the selectmen of said town, 
at the expiration of your official year. 

Given under our hands and seal, this twentieth day of 
April, in the year eighteen hundred forty-three. 

R. M.j 

A. P. > Selectmen of Bow. 

T. D. / J 

22. When any distress is made by the surveyor, he must 
make a return of his doings on his warrant, and this return 
should state particularly the giving of the notice required 
in section 5, the giving of the second notice to pay, the 
posting up of advertisements, and every other act which the 
law requires. This return is the sheriff's protection, and 
should be made with great care, so as to state all the facts 
fully and explicitly. 15 Maine R., 248. 

23. A surveyor may cut and remove trees growing in a 
highway, so far as is necessary to make the road or keep it 
in repair ; but if he converts the wood to his own use he 
will be a trespasser. 1 N. H. i?., 16. 

24. A surveyor of highways, chosen at a meeting not le- 
gally holden, is not a legal officer, and cannot legally make 
a distress. 7 N. H. R. , 206. 

25. If a road in any district is out of repair, and the high- 
way tax of the district is not sufficient to repair it, the sur- 
veyor should immediately notify the selectmen, who shall 
cause the repairs to be made at the expense of the town. Sec. 
11, of this chapter. 

26. If the limits of a surveyor's district are assigned, he 
is the sole judge of the duties to be performed within such 
limits ; but if the selectmen neglect to assign any limits, it 



136 



MAKING AND REPAIRING HIGHWAYS 



will be necessary for them to act together or by the voice of 
the majority of the whole number. 1 Pick. R., 426. 

27. If the public safety and convenience require a lev- 
elling of the road, he must do it with as much care, in rela- 
tion to property bordering on the road, as it is possible for 
him to use ; and if he should abuse his authority by digging 
down or raising up, where it might not be necessary for the 
reasonable repair of the road, he would be liable to any suf- 
fering party for damages. 1 Pick. R., 428. 



CHAPTER 33 



OF MAKING AND REPAIRING HIGHWAYS NOT IN 
ANY TOWN. 



1. 



7. Deed, who to make, when. 

8. Money, how to be applied. 

9. Repairs made in same man- 
ner. 

10. Owners may assess tax. 

11. Powers of legislature. 



Owners to contribute -to ex- 
penses of building roads. 

2. Notice of laying out given. 

3. Tax to be assessed, how. 

4. Notice of tax and sale given. 

5. Owner may pay his part. 

6. Sale to be made, how. 

1. Highways, not within the limits of any town, shall be 
made and repaired by the owners of the lands through which 
they pass ; and all the owners of any land, holden under one 
title from the state or province, shall pay their proportion, 
according to their interest, of all costs of making and re- 
pairing the highways through any part of such land. R,. S., 
ch. 56, sec. 1. 

2. The court of common pleas, whenever they shall lay 
out any highway through such land, shall cause notice there- 
of to be published in some newspaper, four weeks successive- 
ly, describing such highway, and requiring the owners of the 
land to make said highway passable within such reasonable 
time as they may order ; and said court may order the whole 
or a reasonable part of the expense of making or repairing 
said highway to be paid by the county. Ibid., sec. 2. 



NOT IN ANY TOWN. 137 

3. If such highway shall not be made as required by such 
notice, the said court shall assess such land so much by the 
acre as they may judge necessary to make the same. Ibid., 
sec. 3. 

4. The county treasurer shall advertise such tax in some 
newspaper four weeks, requiring the owners of such land to 
pay the same to him in sixty days from the first publication of 
such advertisement, and notifying the owners that such land 
will otherwise be sold at auction, at a certain time and place 
mentioned therein. Ibid., sec. 4. 

5. The owner of any part of or interest in such tract may 
pay said tax for the same, and take a receipt describing the 
part or interest for which he pays. Ibid., sec. 5. 

6. If said tax is not paid within said sixty days on any part 
of such land, the county treasurer shall sell the part or interest 
of the delinquent, at the time and place mentioned in such 
advertisement, or so much thereof as may be necessary to 
pay said tax with incidental charges. Ibid., sec. 6. 

7. The county treasurer shall make a deed of the land so 
sold, to the purchaser, after the time of redemption has ex- 
pired ; and any person interested therein may redeem the 
same by payment or tender to the county treasurer, for the 
use of the purchaser, of the amount for which the same was 
sold, with twelve per cent, interest thereon, within one year 
from the sale. Ibid., sec. 7. 

8. The money so raised shall be applied, under the di- 
rection of the court, to make and repair such highways. 
Ibid., sec. 8. 

9. A similar method may be pursued by said court to keep 
in repair highways running through said lands, in case the 
owners shall neglect to repair the same. Ibid., sec. 9. 

10. The owners of such lands may call meetings, and 
vote such sums of money for making and repairing highways 
as they may think proper, and choose officers for levying and 
collecting the same, as proprietors of common and undivided 
lands are by law authorized to do. Ibid., sec. 10. For the 
powers of such "proprietors," see R. S., ch. 143. 

11. " The legislature has no constitutional right to grant a 
tax upon lands in a particular town or place for the purpose 
of making or repairing roads in such town or place." 4 
N. H. R., 572. The law must be general, applying to alj 
towns or places in the state. Ibid. 

T * 



138 



CHAPTER 34 



OF THE LIABILITY OF TOWNS FOR NOT MAKING 
AND REPAIRING HIGHWAYS. 



1. Town fined for neglect,when. 

2. Notice of prosecution given. 

3. Proceedings in such case. 

4. Witness's fees, how paid. 

5. Fines, how collected. 

6. Agents to be appointed. 

7. Public highway, what is. 

8. Town liable for damages. 

9. Surveyor, when liable. 



11. Width of felloes regulated. 

12. Number of cattle limited. 

13. Burden of proof on plaintiff. 

14. Liability for snow also. 

15. Liable for private way. 

16. Liability, rules respecting. 

17. Liable by user, when. 

18. Duty if repah's necessary. 

19. Road, when out of repair. 



10. Weight of load limited. 

1. Fines shall be imposed upon towns for neglect to make 
or repair highways, in the following cases : 

I. If any town shall unreasonably neglect to make and 
put in good repair any new highway laid out therein ; 

II. If any town shall unreasonably neglect to alter and 
put in good repair any highway which has been widened 
and straightened therein ; 

III. If any town shall unreasonably neglect to grade the 
hills in any highway therein, agreeably to the judgment of 
the court of common pleas ; 

IV. If any town shall neglect to cause any dangerous 
causeway or embankment in any highway therein to be 
securely railed ; 

V. If any town shall neglect to keep any highway therein 
in good repair, and suitable for the travel passing thereon. 
R. S.,ch.53,sec. 1. 

The third and fourth articles in this section are new, and 
the latter deserves the especial attention of town officers. 

2. The grand jury may indict, or the attorney-general or 
solicitor may file an information against, any such town, for 
either of said offences ; and a summons shall thereupon be 
issued to such town, which shall be served by giving to one 
of the selectmen, and to the town-clerk, or leaving at their 
usual places of abode respectively, an attested copy thereof, 



OF THE LIABILITY OF TOWNS. 139 

with a like attested copy of the officer's return thereon, 
thirty days before the court at which the same is returna- 
ble. Ibid., sec. 2. 

' 3. If such town shall not appear at said court, or shall be 
found guilty by verdict or otherwise, the court shall impose 
on such town a fine sufficient to put such highway in perfect 
repair, and to defray all the expenses connected therewith, 
and render judgment against such town for costs. Ibid., 
sec. 3. 

4. No fees for witnesses shall be taxed against such town, 
except such as have attended as witnesses in such prosecu- 
tion by order of the attorney-general or solicitor. Ibid., 
sec. 4. 

5. All such fines and costs shall be levied and collected 
by execution, in the same manner as executions against 
towns are levied in civil cases. Such fine shall be paid over 
to the agent appointed as is herein prescribed, and the costs 
to the attorney-general or solicitor. Ibid., sec. 5. 

6. One or more agents shall be appointed by the court to 
superintend the collection of such fine, who shall apply the 
same to make, alter, repair, grade or secure such road, as 
the case may require, and who shall seasonably make return 
of his doings in the application and expenditure thereof to 
said court for their allowance. Ibid., sec. 6. 

7. No highway that has not been laid out agreeably to 
statute law shall be deemed a public highway, unless the 
same has been used by the public for a term of time not less 
than twenty years; and no highway thrown open to the 
public, the use of which would not be necessary for public 
travel, excepting for the purposes of travel over atoll bridge, 
shall ever be deemed a public highway, unless the same shall 
be laid out agreeably to statute law. Ibid., sec. 7. 

This provision is new, and its effect upon the liability of 
towns is very extensive. Previously, the use and repair of a 
way by a town made it a public highway, so as to make the 
town liable ; now a legal laying out or twenty years' use is 
essential. 

8. In case any special damage shall happen to any person, 
or to his team or carriage, by reason of the obstruction, insuf- 
ficiency or want of repair of any highway or bridge in any 
town, the person injured shall recover his damage in an ac- 
tion against such town. R. S., ch. 57, sec. 1. 

The town is not liable for such damage except by this 
chapter. 2 N. H. R., 393. 



140 OF THE LIABILITY OF TOWNS FOR 

9. The town shall have a remedy over against any sur- 
veyor of highways through whose fault or neglect the said 
damage happened. Ibid., sec. 2. 

10. No town or corporation shall be liable for any dam- 
age happening to any carriage from any deficiency of any 
highway or bridge, if the weight of the load upon such car- 
riage, exclusive of the carriage, shall exceed seven tons. 
Ibid., sec. 3. 

11. No town or other corporation shall be liable for any 
damage arising from any deficiency of any highway or bridge, 
if the weight of the load upon the carriage, exclusive of the 
carriage, shall exceed four tons, unless the felloes of the 
wheels of such carriage shall be of the width of five inches 
or more. Ibid., sec. 4. 

12. No town or corporation shall be liable to any person 
for any damage occasioned to droves of cattle by reason of 
the deficiency of any bridge, where the number of cattle on 
such bridge at the same time shall exceed twenty-five. 
Ibid., sec. 5. 

13. Upon the trial of any action for the recovery of such 
damage, it shall be incumbent on the plaintiff to prove the 
weight of such load, or the number of cattle upon such 
bridge. Ibid., sec. 6. 

14. Every town and surveyor of highways shall be liable 
for any damage arising from the snow encumbering the same, 
as from any other deficiency ; and such surveyor and the se- 
lectmen shall have the same powers, and be subject to the 
same duties in relation to such encumbrance, as in case of 
any other accident occurring to a highway. Ibid., sec. 7. 

15. A way laid out for the accommodation of individuals 
is a public highway. Every person having occasion has a 
right to use it, and the town is bound to keep it in repair. 
3 JV. H. R., 463, 465. 

16. " Towns are not liable for damages occasioned to an 
individual, if he was in fault, or unless the injury resulted di- 
rectly from the want of repairs. The principles which must 
govern actions upon the statute are easily illustrated. 

" Suppose a bridge across a stream in a town is so out of 
repair and ruinous as to be manifestly unsafe to pass. Any 
person coming to such bridge with his horse, carriage or 
team might, with great propriety, decline to pass it ; and if 
he sustained any special damage by reason of his being un- 



NOT MAKING AND REPAIRING HIGHWAYS. 141 

able to pass it, he might well maintain an action against 
the town. 

'* But if in such case, knowing the situation of the bridge, 
he should attempt to pass with his horse or team, and they 
should be lost or injured, he could maintain no action against 
the town, because the loss must be attributed to his own 
fault and folly in attempting to pass such a bridge. Or, if 
finding the bridge impassable, he should lose his horse in an 
attempt to ford the stream, the town would not be liable for 
the loss of the horse, because the damage in such case did 
not result directly from any defect in the bridge, but from 
some danger in fording the stream. But if, coming to the 
bridge in the night, without any notice of its defects, he 
should lose his horse in attempting to pass it, the town would 
be liable." 2 JV. H. R., 394. 

And towns are liable whether the defect was previously 
known to exist or not — 3 N. H. R., 53; and although the 
road is in the same state as when first made and accepted — 
Ibid.; 16 Mass. R., 106. 

17. A bridge, though erected by individuals, yet if dedi- 
cated to the public, and used freely by them so long as to 
evince its public utility, must be kept in repair by the town ; 
2 JV*. H. R., 513; but not unless so used twenty years; 
section 7 of this chapter. 

18. If a road or bridge is out of repair, travellers should 
be warned of their danger by a railing, or by something else 
which may answer the same purpose. This should be done 
by the surveyor, and the necessary repairs made without de- 
lay. 2 Fairfield's R., 274. Whether a bridge has been 
wantonly destroyed by individuals, or accidentally by fire or 
flood ; whether an excavation has been made by design, or 
by running waters ; whether an obstruction in the road has 
happened by the unauthorized act of individuals, or by the 
falling of trees uprooted by the wind, the public convenience 
equally requires that the necessary repairs should be speedily 
made, and the law has imposed on towns both the duty and 
the liability. Ibid. 

19. Towns are not bound to keep the whole width of the 
road, from one boundary to the other, free from obstructions 
and fit for the use of travellers, but only a reasonable part 
thereof. 16 Pick. R., 1S9. And if travellers are injured 
out of such travelled part, if of reasonable width, the town is 
not liable for such injury. Ibid. 



142 



CHAPTER 35. 

OF INJURIES TO AND ENCUMBRANCES AND EN- 
CROACHMENTS ON HIGHWAYS, AND THE RIGHTS 
OF THE PUBLIC AND LAND OWNERS THEREIN. 



1. Injuring highway, liability. 

2. Liable for all damage done. 

3. Encumbrances, how removed. 

4. Complaint, when to be filed. 

5. Proceedings on complaint. 

6. Surveyor's power to sell. 

7. Persons encumbering liable. 

8. Encroachment, how removed. 

9. Public structures excepted. 



10. Gates on road, when allowed. 

11. Appeal to court, when. 

12. Form of complaint in sec. 4. 

13. Form of order of notice. 

14. Notice, how given thereon. 

15. Form of warrant thereon. 

16. Other proceedings, what. 

17. Rights of public and owners. 

18. " Public highway," what is. 



1 . If any person shall wantonly or illegally injure or dam- 
nify any highway, causeway or bridge, by destroying or tak- 
ing away any of the plank, timbers, stone or other materials 
thereof, or by digging any pit therein for gravel or clay, or 
for any other purpose, he shall on conviction be punished 
by fine not exceeding one hundred dollars, or by imprison- 
ment not exceeding six months. R. S., ck. 58, sec. 1. 

2. Every person, so injuring or damnifying any highway 
or bridge, shall be liable to the town for all damage done to 
the same, and for all damages to which such town may be 
subjected by reason thereof. Ibid., sec. 2. 

3. The surveyor of highways may remove any timber, 
lumber, stones or other thing whatever, placed or being in 
any highway or street to the encumbrance thereof. R. S., 
ch. 59, sec. 1. Previous to the enactment of the provisions 
embraced in this section it was decided that an individual 
could not remove an encumbrance unless it was in the trav- 
elled part of the road and impeded the travel. 4N. II. R., 
544 ; but this and the next section, enacted since that decis- 
ion, prescribes a new remedy, and give new powers. A sur- 
veyor has no power, however, in the cases mentioned in 
section 8. 

4. Such surveyor may, if he choose, give reasonable no- 
tice to the owner, or person leaving any such encumbrance, 
to remove the same ; and upon their neglect or refusal to 
remove the same, or if they are unknown, he may make 
complaint thereof to a justice of the peace. Ibid.., sec. 2. 






INJURIES AND ENCUMBRANCES. 143 

The form of such notice may be thus : 

To Amos Broivn, of Stoddard: 

You are hereby ordered to remove a pile of boards left by 
you in the highway near your house in said Stoddard, with- 
out delay, as said highway is encumbered thereby. 
John Wilson, Surveyor of highways for district No. 3. 
Stoddard, June 1, 1843, 

5. Such justice shall cause notice to be given to the own- 
er, or person leaving the same, if known, of the time appoint- 
ed by him to view such encumbrance ; and after hearing 
such party may, upon his own view, issue his warrant to the 
surveyor to remove the same, so far as he shall judge neces- 
sary for the public convenience, and to sell so much thereof 
as may be necessary to pay the legal costs taxed by him, 
and three times the price of the labor of removing the same, 
to be estimated by such justice. Ibid., sec. 3. 

6. The surveyor shall have the same power and be gov- 
erned by the same rules, in making such sale, as collectors 
of taxes in the sale of property distrained by them ; and if 
the proceeds of such sale shall be insufficient to pay the 
sums specified in such warrant, the surveyor may recover 
the balance unpaid, by action on the case against the person 
leaving the same. Ibid., sec. 4. See chapters 23 and 26. 

7. If any person shall place in any highway or street any 
timber, lumber, stones or other thing whatever, to the en- 
cumbrance or obstruction thereof, he shall be liable to the 
town for all damages and costs which said town shall be 
compelled to pay to any person who has sustained damage 
by reason of such encumbrance or obstruction. Ibid., sec. 5. 

8. If any building, structure or fence, shall be erected or 
continued upon or over any highway, street or alley, so as 
to obstruct the same, or lessen the full breadth thereof, it 
shall be deemed a public nuisance ; and any person erect- 
ing or continuing the same shall be punished by fine not ex- 
ceeding fifty dollars, and costs of prosecution ; and the court 
shall order and cause such building, structure or fence to be 
taken down or removed. R. S., ch. 60, sec. 1. 

This section relates to encroachments upon any part of 
the road, and is not confined to the travelled part, as in case 
of encumbrances. 16 Pick. R., 175. 

9. The foregoing section shall not be construed to pro- 



144 INJURIES AND ENCUMBRANCES. 

hibit the erection of any watch-house or structure for public 
use, by the selectmen of any town, or any sign or awning 
erected in conformity to the regulations established by the 
police officers. Ibid., sec. 2. 

10. The selectmen upon application may, by license re- 
corded by the town-clerk, permit any person to keep a gate 
upon any highway leading across any meadow or intervale 
land liable to freshets, at a place therein designated, under 
such restrictions as they may judge proper ; and they may 
at any time alter or revoke such license. Ibid., sec. 3. 

11. If any person shall think himself aggrieved by the 
grant of such license, he may apply by petition to the court 
of common pleas for redress, who shall cause such notice 
to be given to all persons concerned as they shall judge 
proper, and may affirm, alter or annul such license. Ibid., 
sec. 4. 

12. The form of the complaint in section 4 may be : 

To F. M., Esquire, one of the Justices of the Peace in and 
for the County of Cheshire, in the State of New-Hamp- 
shire. 

Complains John Wilson, surveyor of highways for district 
No. 3, in the town of Stoddard, in said county, that Amos 
Brown, of said Stoddard, yeoman, on the first day of June, 
eighteen hundred and forty-three, at said Stoddard, with 
force and arms in and upon the highway in said district 
leading from to , unlawfully and injuriously did 

place and put a large pile of boards, and said pile of boards 
so put and placed in said highway, from the said first day of 
June until the day of exhibiting this complaint, has unlaw- 
fully and injuriously permitted to be and remain in and upon 
said highway, and still does permit, to the great damage and 
common nuisance of all the citizens of said state having oc- 
casion to pass and repass in and along said highway, and 
against the peace and dignity of the state. And although 
your complainant on the said first day of June ordered the 
said Amos Brown to remove the said encumbrance, yet the 
said Amos Brown has wholly neglected to remove the same. 

Wherefore your complainant prays the said justice, upon 
his own view of said encumbrance, by warrant under his 
hand and seal, directed to your said complainant, to cause said 
encumbrance to be immediately removed so far as said jus- 



INJURIES AND ENCUMBRANCES. 145 

tice may think necessary for the public good, and to order 
so many of the said boards to be sold as the said justice may 
judge necessary to pay the legal cost, and three times the 
price of the labor of removing the same. 

John Wilson. 

Stoddard, June 4, 1843. 

Cheshire ss., June 4, 1843. Then the said John Wilson 
made oath that the foregoing complaint by him signed is in 
his belief true. Before me, 

F. M., Justice of the Peace. 

If the person leaving the encumbrance is unknown, omit 
the words, " Amos Brown, of said Stoddard, yeoman," and 
insert instead — some person to your complainant unknown; 
also omit all the sentence between " dignity of the state," 
and " wherefore." 

13. The order of notice on such complaint may be : 
Cheshire ss. Upon the foregoing complaint, it is ordered 

<^i^x that the said Amos Brown shew cause, at the 
\m dwelling house of the subscriber, in Stoddard, 
in said county, on the sixth day of June instant, 
at one o'clock in the afternoon, why the said 
encumbrance should not be removed. 

F. M., Justice of the Peace. 

14. Notice of the time and place of hearing must be given 
to the party complained against, if known, by giving to 
him in person, or leaving at his usual place of abode a rea- 
sonable time before the time of hearing, a copy of the com- 
plaint and order thereon, attested thus — A true copy of the 
original : D. W. ; and an affidavit of service should be made 
on the back of the original complaint. 

15. At the time and place appointed the justice should at- 
tend, and after hearing all the evidence and arguments offer- 
ed, if he thinks it an encumbrance which ought to be remov- 
ed, should tax the costs, and estimate the expense of removal, 
and issue his warrant in the form following : 

STATE OF NEW-HAMPSHIRE.* 

Cheshire ss. To John Wilson, Surveyor of Highways 
v^Biy^. for district No. 3, in the town of Stoddard, in 
SMm ^%M sa ^ County. 

Whereas complaint has been made to me, F. M., one of 




146 INJURIES AND ENCUMBRANCES. 

the justices of the peace in and for said county, as follows : 
" Complains John Wilson, surveyor of highways for district 
No. 3, in the town of Stoddard, in said county, that Amos 
Brown," (here insert the whole complaint.) And the said 
Amos Brown having been duly notified to appear before me 
and shew cause, if any he had, why said timber should not 
be removed, and the said Amos Brown not showing sufficient 
cause, (or not appearing,) and it appearing to me, the said 
justice, upon my own view of the same, that it is necessary 
for the public good that the boards described in said com- 
plaint be removed, I do hereby order you forthwith to remove 
said boards from the highway aforesaid, so that no part of 
the same may in any way impede or hinder those who may 
have occasion to travel upon said highway. 

And you are also ordered to sell so many of said boards 
as may be necessary to pay the legal costs upon the said com- 
plaint, taxed by me at , and also the sum of three 
dollars, being three times the price of the labor of remov- 
ing said boards, as estimated by me. 

And you are to keep such part of said boards as it may 
be necessary to sell, four days, unless the sums aforesaid 
shall be sooner paid ; and if said sums are not paid within 
said four days you are to post up in two or more public 
places in the town, twenty-four hours at least before the 
time of sale, a notice of the place, day and hour of the sale, 
with a particular description of the property to be sold. 
Such sale shall be in this town, within forty-eight hours af- 
ter the expiration of said four days, and between the hours 
of ten in the forenoon and six in the afternoon, and you are 
then and there required to sell at public auction to the high- 
est bidder so many of said boards as may be necessary to 
pay said sums. And you are, immediately after said sale, to 
deliver, or have ready to deliver on request to the owner, a 
particular account in writing of the sums aforesaid, and the 
amount of the sale of each article of the property sold. 

Herein fail not. Given under my hand and seal, this 
sixth day of June, eighteen hundred forty-three. 

F. M., Justice of the Peace. 

16. For forms and directions in such sale, see chapters 
23 and 26. 

If the owner is unknown, the words from, "' And the said 
Amos Brown,"down to "or not appearing," inclusive, should 
be omitted. 



BRIDGES, RAIL-ROADS AND GUIDE-BOARDS. 



147 



17. " In highways laid out through the lands of individ- 
uals, the public has only an easement, or right of passage ; 
the soil and freehold remain in the individual whose lands 
have been taken for that purpose." 1 N. H. R., 16 ; 4 
N. H. R., 37, 513. 

" The owner of the soil of a highway may use it in any 
way which is not inconsistent with the public convenience. 
Highways may be lawfully used for other purposes than 
mere passage. Trees are often left growing, boards, plank, 
timber, wood and various instruments of husbandry are left, 
and heaps of manure are collected within the limits of high- 
ways. But they are not nuisances unless so situated as to 
obstruct the passage." 4 N. II. R., 525. 

But no person except the owner has a right to pasture it — 
4 N. H. R., 514 ; or to plough it, except for repairing it — 
1 Pick. R., 122 ; or to cut the grass growing on it — 6 
Pick. R., 57. 

18. But no road is " a public highway," within the pro- 
visions of this chapter, unless it has been legally laid out, or 
used as such twenty years. See ch. 34, sec. 7. " High- 
ways" include the bridges thereon. R. S., ch. 1, sec. 21. 



CHAPTER 36. 

OF BRIDGES, RAIL-ROADS, GUIDE-BOARDS AND THE 
LAW OF THE ROAD. 



1. Bridge, penalty for injuring. 

2. By-laws for toll bridges made. 

3. Notice thereof to be posted. 

4. Guide-posts to be erected. 

5. Fenalty for neglect. 

6. Penalty for injury to. 

7. Travellers to turn to the right. 

8. Fenalty for neglect so to do. 



9. Limitation of complaints. 

10. Limitation of action. 

11. Law applies to streets also. 

12. " Travelled part," meaning of. 

13. Liability of travellers. 

14. Rail-road crossings regulated. 

15. Penalty for neglect to obey. 



1. Any town at a legal meeting may establish by-laws to 



148 OF BRIDGES, RAIL-ROADS, GUIDE-BOARDS 

prevent any person from wilfully riding or driving at a rate 
faster than a walk over any bridge in such town which shall 
have cost one thousand dollars or more, and annex penalties 
not exceeding one dollar for the breach thereof, to be recov- 
ered in the name and for the use of the town. R. S., ch. 

61, sec. 1. 

2. The proprietors of any toll bridge may make by-laws 
to prevent any person from riding or driving over such bridge 
at a rate faster than a walk, and annex penalties not exceed- 
ing two dollars for the breach thereof, to be recovered by 
the corporation for its own use. R. S., ch. 61, sec. 2. 

3. No such by-law shall be in force unless such town or 
corporation shall cause to be posted and kept up, in some 
conspicuous place, at each end of said bridge, a board 
painted with a. white ground, containing, in black letters, 
the substance of such by-laws. R. S., ch. 61, sec. 3. 

4. Every town shall erect and keep in repair suitable 
guide-posts or guide-boards, at the intersection of all public 
highways, on which shall be distinctly and legibly marked 
the name of the next town, and such other towns as the se- 
lectmen may think proper, and the distance in miles to the 
same, with an index pointing towards the places to which 
such roads lead. R. S.', ch. 62, sec. 1. 

5. If any town shall neglect to erect or keep in repair 
such guide-post, or guide-board, at each intersection of the 
highways therein, they shall forfeit for each month's neglect 
the sum of one dollar, to be recovered by action by any per- 
son who will sue for the same, for his own use. R. S., ch. 

62, sec. 2. 

6. If any person shall throw down, destroy or deface any 
such guide-post, guide-board or its appendages, or the let- 
ters or figures thereon, or aid or assist therein, he shall, on 
conviction upon complaint before any justice of the peace, 
be punished by fine not exceeding ten dollars, for the use of 
the town. R. S., ch. 62, sec. 3. 

7. Every person travelling with any carriage or other ve- 
hicle, who shall meet any other person so travelling on any 
highway or bridge, shall seasonably drive his carriage or 
vehicle to the right of the centre of the travelled part of the 
road, so as to enable such person to pass with his carriage 
or vehicle without interference or interruption. R. S., ch. 

63, sec. 1. 

8. Every person who shall offend against the provisions 



AND THE LAW OF THE ROAD. 149 

of the preceding section shall, upon complaint before a jus- 
tice of the peace, be punished by fine not less than one dol- 
lar nor more than twelve dollars, and shall be liable for all 
damages sustained in consequence of any neglect to comply 
with said provisions. JR. jS., ch. 63, sec. 2. 

9. No complaint for any offence prohibited by this chap- 
ter shall be sustained unless made by the party aggrieved, 
or by some person authorized by him, within ninety days 
after such offence is committed. JR. &; ch. 63, sec. 3. 

10. No action for damages sustained by reason of any 
violation of this chapter shall be supported, unless it shall 
be commenced within one year after the cause of action ac- 
crued. JR. &., ch. 63, sec. 4. 

1 1. The law of the road applies to the streets of populous 
villages as well as to other highways, and a person driving 
a carriage across the head of a street must see that he does 
not interfere with others in the proper exercise of their right 
of passing. 1 Pick. JR., 344. 

12. By " the travelled part" of a road is intended that 
part which is usually wrought for travelling — not the centre 
of the track made by carriages. 4 Pick. jR., 126. 

13. If a man travels on the left side of the road, or across 
it for the purpose of turning up to a house on that side, he 
must not interfere with another person lawfully passing on 
that side ; if he does he acts at his peril, and is answerable 
for damages. 2 Fairfield R., 339. 

14. If any rail-road shall intersect or cross any highway 
in any town in this state, such town may, at any legal town 
meeting, direct that such place of crossing or intersection 
shall be secured by a bridge over said road, or by the erec- 
tion of gates on both sides of said highway, as the town may 
think expedient. R. *S., ch. 142, sec. 4. 

The town may require a bridge or gates, but not both. 
An article should be inserted in the warrant for the meeting 
in relation to the subject. The name of the rail-road should 
be correctly described in the vote. 

15. If after due notice given of such vote to the clerk of 
such rail-road corporation, such corporation shall neglect 
for the space of six months to erect and complete, to the 
satisfaction of the selectmen of such town, such bridge or 
gates, according to the vote of the town as aforesaid, the 
selectmen may remove or cause to be removed the rails 
from such rail-road where it crosses such public highway, 



150 BRIDGES, RAIL-ROADS AND GUIDE-BOARDS. 

and no engine or car shall be permitted to run across such 
highway, until the vote of the town shall be complied with. 
Ibid., sec. 5. 

Notice of such vote may be given by giving to the clerk, 
or leaving at his usual place of abode, a copy of the vote, sign- 
ed and attested by the town-clerk. A copy should be pre- 
served, and the return of service made thereon. Before the 
selectmen take up the rails they should again give notice to 
the agent or engineers, so that the lives of passengers may 
not be endangered. 



TITLE V, 



OF SCHOOLS. 

Chapter 37. Of the creation, division and powers of 

school districts. 
Chapter 38. Of the meetings and officers of school dis- 
tricts. 
Chapter 39. Of school houses. 
Chapter 40. Of school taxes and school money. 
Chapter 41. Of the regulation, instruction and inspection 

of schools. 
Chapter 42. Of schools in the town of Portsmouth. 



CHAPTER 37. 

OF THE CREATION, DIVISION AND POWERS OF 
SCHOOL DISTRICTS. 



1. Town, how divided into dis- 

tricts. 

2. Limits, how defined and al- 
tered. 

3. Selectmen may district,when. 

4. District is a corporation. 

5. Town not divided, how liable. 

6. Penalty for neglect to district. 

7. Property appraised on divi- 
sion. 

8. Allowance to be made, when. 

9. Districts may unite, when. 
10. Powers in case of union 



11. Executions against districts. 

12. Forms and proceedings in dis- 
tricting the town. 

13. Application to selectmen to 
district the town. 

14. Application for appraisal of 
property, and proceedings. 

15. Union of school districts. 

16. Inhabitants may be witnesses. 

17. Vote to raise money, when 
void. 

18. Evidence of acts of district. 

19. Powers of school districts. 



1. Every town shall be divided by metes and bounds 
into so many districts as the public good requires, which 



152 OF THE CREATION, DIVISION 

shall be distinguished by suitable boundaries, and include 
all the territory of the town. R. S., ch, 69, sec. 1. 

It is the duty of the selectmen to see that this is done 
forthwith, if it has not been done already, and to insert an 
article in the warrant for a town meeting for that purpose. 
The limits of the district must not be described by the 
names of the inhabitants of the district, but should be bound- 
ed by lines and monuments, as in a deed of land. 

2. At any legal meeting for that purpose such division 
may be made by vote of the town, and the limits of such 
districts denned, and from time to time altered as conveni- 
ence may require, a record of which shall be made. Ibid., 
sec. 2. 

3. If any town shall neglect so to divide itself into school 
districts, the selectmen, on application in writing by ten le- 
gal voters, shall forthwith divide the town into districts, de- 
fine their boundaries, and cause a record thereof to be 
made by the town-clerk within thirty days after such appli- 
cation. The town of Newington is exempted from this 
section. Ibid., sec. 3. 

4. Every school district shall be a body politic and cor- 
porate, and may sue and be sued, take, hold, manage and 
convey real and personal property for the use of the district, 
and make and enforce all necessary contracts in relation 
thereto. R. S., ch. 70, sec. 1. 

The rights and powers of a school district within its 
limits, and for school purposes, the right to the property of 
the district when divided, and the power to hold property, 
are similar to those of towns for town purposes. See chap- 
ter 1. It may, by its treasurer or prudential committee, 
hold property as a fund for the benefit of the district school, 
and may require a bond for its safe keeping and payment. 
Districts are now by the Revised Statutes made public cor- 
porations, and are entitled to the rights and subject to the 
liabilities of such corporations. 

5. Any town not divided as aforesaid shall be considered, 
when necessary, as one district, and shall be entitled to all 
the rights, and subject to all the duties and liabilities of a 
town and of a district respectively. R. S., ch. 69, sec. 4. 

6. If the selectmen of any town shall neglect, for six 
months after application made, to make a division as afore- 
said, they shall forfeit a sum not exceeding one hundred 
dollars. Ibid., sec. 5. 



AND POWERS OF SCHOOL DISTRICTS. 153 

7. When a new district is formed from one or more 
districts, the selectmen, upon the petition of a majority of 
the legal voters of such new district, shall appraise all the 
property belonging to, and all the debts due by each district 
so divided. Ibid., sec. 6. 

8. If the property exceed the debts the selectmen shall 
assess upon the polls and rateable, estate of that part of the 
district retaining such property, a reasonable sum, not ex- 
ceeding the proportion of the excess which the polls and 
rateable estates of the parts of the districts so divided bear 
to each other, and shall assess and collect the same in the 
same manner as school-house taxes, and cause the same to 
be paid over and applied for the use of such new district. 
Ibid., sec. 7. 

9. Two or more contiguous districts, in adjoining towns, 
may, upon such terms as they shall think proper, unite in 
the support of schools, to be kept from year to year, so long 
as they agree, within either of such towns, for the common 
benefit of such districts ; and it shall be lawful for the pru- 
dential committees of such districts, so long as such union 
exists, to expend in the support of said schools the propor- 
tion of school money assigned to their respective districts 
by the selectmen of their respective towns. Ibid., sec. $. 

10. Each of the districts so uniting shall maintain its sep- 
arate organization, and may raise money to build, repair, 
alter, remove or furnish a school-house and other necessary 
buildings for their common use, although the same be not 
built within the district raising the money ; and the money 
so raised shall be assessed and collected in the same man- 
ner as though it had been raised to build a school-house 
within such district. Ibid., sec. 9. 

11. When an execution shall issue against any school 
district, a copy thereof shall be left with one of the select- 
men of the town ; and the selectmen shall assess the inhabit- 
ants of such district in a sum sufficient to satisfy the same, 
and shall have the same authority in the collection thereof 
that they now have in the collection of town taxes. R. $., 
ch. 70, sec. 2. 

12. The form of the article in the warrant relative to di- 
viding the town into school districts may be : 

To see if the town will divide its territory into school dis- 
tricts, and if so, into how many, and define their bounds ; or, 
To see if the town will alter the boundaries of any of the 



154 OF THE CREATION, DIVISION 

school districts in the town, or make any new districts, and 
fix their bounds. 

The form of the vote of the town making a division may 
be : 

Voted, that the territory of this town be divided into nine 
school districts, to be bounded and called as follows : 

School district No. 1 is bounded thus : Beginning at the 
north-east corner of the homestead farm of A. B., at the 
highway leading from C. to D. ; thence southerly by said 
highway, about one mile, to the south-east corner of the farm 
of S. H. ; thence westerly by the southerly line of the farms of 
said S. H., N. O. and D. P. to the south corner of the home- 
stead farm of said D. P. ; thence northerly by the westerly 
line of the farms of said D. P., N. L. and T. D., to the 
northwesterly corner of the farm of said T. D. ; thence east- 
erly by the northerly lines of the farms of T. D., P. R. and 
A. B. to the first bound, and comprising all the territory 
within said limits. School district No. 2 is bounded, &c. 

The town may vote to authorize the selectmen to divide 
it into school districts, but such division will not be legal 
until it is accepted by the town at some legal meeting for 
the purpose, an article therefor being inserted in the war- 
rant. In such case the selectmen act as a committee, and 
their doings must be ratified by the town. 3 N. H. R., 168. 

13. The form of the application to the selectmen, on the 
neglect of the town in section 3, may be : 

To the Selectmen of the town of H. 

Whereas the town of H. has neglected to divide itself 
into school districts, according to the law in such case made 
and provided, we the subscribers, legal voters of said town, 
hereby request yon forthwith to divide said town into con- 
venient school districts, define their boundaries, and cause a 
record thereof to be made by the town-clerk according to 
law. A. B., &,c. &,c. 

H , April 1, 1843. 

As the selectmen are not authorized to make such divis- 
ion except upon the " neglect" of the town, and as the town 
can act only at a legal meeting, called by the, selectmen, it 
will be more prudent, if not necessary, for the selectmen, 
before making such division, to call a town meeting for the 
purpose. If the town refuse to district, the selectmen may 



AND POWERS OF SCHOOL DISTRICTS. 155 

then safely proceed. No notice need be given, (though it 
might be well to give notice,) but the selectmen should make 
the division immediately, describing each district " by metes 
and bounds," sign it, and cause it to be recorded by the town- 
clerk together with the application. The record should be 
attested by the town-clerk as a true copy. The form of the 
return may be the same as in the preceding section, omit- 
ting the word " voted," and saying instead — 

Upon the foregoing application, the subscribers, select- 
men of the town of H., said town having neglected to divide 
itself into school districts according to law, do order . 

14. The form of the application for an appraisal of prop- 
erty and debts, as in section 7, may be : 

To the Selectmen of the town of H. 

The undersigned, a majority of the legal voters in school 
district No. 3, in said town of H., respectfully represent 
that said school district No. 3 is a new district, formed from 
school districts Nos. 2 and 6 in said town, by a vote of said 
town ; that said school districts No. 2 and No. 6 are pos- 
sessed of school houses and other property, belonging to said 
districts at and before the division thereof, and while said 
district No. 3 was a part thereof, for which said district No. 
3 has received no compensation : We therefore request you 
to examine and appraise all the property belonging to, and 
all the debts due by said districts Nos. 2 and 6 respect- 
ively at the date of the formation of said district No. 3, and 
to award a reasonable sum therefor to said district No. 
3, and cause the same to be assessed, collected and paid 
over to said district according to the 'law in such case made 
and provided. A. B., &c. &c. 

H , April 10, 1843. 

Upon this application the selectmen should appoint a time 
and place of hearing, the form of which may be thus : 

Upon the foregoing application it is ordered that a hear- 
ing thereon be had at the dwelling-house of A. B., in said 
town, on the twenty-fifth day of April instant, and that no- 
tice thereof be given to said school districts Nos. 2, 3 and 6, 
by giving to the clerk of each of said districts in hand, or 
leaving at his usual place of abode, an attested copy of this 
application and order of notice thereon, ten days at least be- 
fore said day of hearing. N. D. \ Selectmen 

H. P. [ of 

H , April 12, 1843. J. L. ) H . 



156 OF THE CREATION, DIVISION 

Service of this notice may be made by any person, al- 
though an inhabitant of the district. The copies should be 
accurately made and examined, and attested by the person 
making the service, thus : 

A true copy. Attest : Thomas Smith. 

At the time and place of hearing, the person making such 
service should return the original to the selectmen, with a 
return thereon as follows : 

H , April 13, 1843. This day I gave to N. L., 

clerk of school district No. 2, and to R. S., clerk of school 
district No. 6, in said town, to each a true and attested copy 
of the within application and order of notice thereon, and I 
left at the dwelling house of C. P., clerk of said school dis- 
trict No. 3, being his usual place of abode, a like copy. 

Thomas Smith. 

Merrimack ss., April 25, 1843. Then the said Thomas 
Smith appeared, and made oath that the above return by 
him signed is true. Before me. 

C. P., Justice of the Peace. 

The selectmen should examine all the property and debts, 
hear all the evidence and arguments offered, take all the 
circumstances into consideration, and award such sum, if 
any, as they think justice requires. The application, order 
of notice, affidavit of notice and the award, should all be 
recorded by the town-clerk in the town records. The form 
of the award may be : 

We the subscribers, selectmen of the town of H., having 
met the parties at the time and place, and for the purposes 
mentioned in the foregoing application and order of notice 
thereon, due notice thereof having been given to all of said 
parties, and having attentively examined and appraised all 
the property belonging to, and all the debts due by, each of 
said school districts No. 2 and No. 6 respectively, and 
heard all the evidence and arguments offered thereupon, do 
determine as follows : 

We appraise the property belonging to district No. 2 at 
the sum of dollars, and the debts due by said district 

at the sum of dollars ; and we order that said district 

pay to school district No. 3 aforesaid dollars, within 

sixty days. 

We appraise the property belonging to district No. 6 at 



AND POWERS OF SCHOOL DISTRICTS. 157 

the sum of dollars, and no debts are due by said dis- 

trict to our knowledge. We order that said district pay to 
school district No. 3 aforesaid the sum of dollars, within 
sixty days. 

Given under our hands this twenty-fifth day of April, 
A. D., 1843. N. D. ) Selectmen 

H. P. \ of 
J. L. ) H . 

15. The union of school districts, authorized by sec. 9, 
must be made by a vote of each district, at some meeting 
in the warrant for which an article for that purpose was in- 
serted. The districts must not be in the same town. The 
form of the article for that purpose may be : 

To see if this district will unite with school district No. 
7., in G., for the purpose of schooling, and if so upon what 
terms, and to take measures to carry the same into effect. 

The form of the vote may be as follows : 

Voted, that this district do unite with school district No. 
7, in the town of G., for the support of schools in our unit- 
ed districts, and that the prudential committee of this dis- 
trict be a committee to agree with said district upon the 
terms of union. 

Voted, that this meeting stand adjourned four weeks, to 
hear and act on the report of said committee. 

The committees so appointed having agreed upon the 
terms of union, should make a written report of the 
terms to the districts, and such reports being accepted by 
vote of each district, and recorded by the clerk, will make 
the union legal. 

16. The inhabitants of public corporations are compe- 
tent witnesses in any case afTecting the interests of such 
corporation. R. S., ch. 18S, sec. 12. A school district is 
such a "public corporation." 

17. A vote to raise money by a school district whose lim- 
its have not been defined by a legal vote of the district (or 
by the selectmen according to law,) is void ; and a warrant 
from the selectmen to the collector to collect the money, is 
no protection to him : if he collects the money by distress, 
he will be a trespasser. 4 N. H. R., 478. 

18. The only legal evidence to prove the doings of a 
school district meeting is the record itself, or a copy attested 



158 



MEETINGS AND OFFICERS 



by the clerk ; parol testimony is not admissible. 4 Green- 
leaf R., 44. 

19. The powers of school districts are special and limited, 
and are such only as are expressly given by statute, or ne- 
cessarily result from such granted powers. 3 Fairfield R., 
258. If they undertake to do any act not within said pow- 
ers, it is illegal and void — Ibid. ; but may raise money (in 
Maine,) to defray the expenses of a lawsuit in which they 
are involved — Ibid. ; but not to build a second school-house 
if the district has one good one already. Ibid. 



CHAPTER 38. 

OF THE MEETINGS AND OFFICERS OF SCHOOL 
DISTRICTS. 



1. Annual meeting, how holden. 

2. Special meetings, how called. 

3. Meetings warned by select- 
men. 

4. Who are voters in district. 

5. Officers of the district, what. 

6. Clerk of district, his duties. 

7. Vacancies, how filled. 

8. Prudential committee, duties. 

9. Prudential committee, remov- 

al. 

10. Form of warrant for meeting. 

11. Proceedings in such case. 

12. Articles to be inserted. 

13. Form of application to com- 
mittee, to call meeting. 

1. There shall be a meeting holden annually in the month 
of March, in each school district, (excepting in such towns 
as shall have adopted the provisions of the chapter relating 
to schools in Portsmouth,) and the prudential committee of 
the district shall warn the same, by posting up a notice signed 



14. Form of application to select- 
men to call meeting. 

15. Form of warrant by select- 
men. 

16. Vacancy, application to fill. 

17. Vacancy, form of appoint- 
ment. 

18. Petition for removal, form. 

19. Notice of removal, form. 

20. Service of notice, how made. 

21. Records of district, how made. 

22. Liability of district. 

23. Liability of clerk. 

24. Form of certificate of vote. 



OF SCHOOL DISTRICTS. 159 

by such committee, stating the time, place and purposes 
of the meeting, at the door of the school-house, if there be 
any in the district, otherwise at one or more public places 
in the district, seven days at least prior thereto. R. S., ch, 
70, sec. 3. 

2. Special meetings may be called at any time in the same 
manner, except for raising money or building or repairing 
school-houses, in which case the notice shall be posted up 
fifteen days prior to the meeting, or given to each voter in 
hand, or left at his usual place of abode, at least ten days 
prior thereto. Ibid., sec. 2. 

Special meetings may be called for any purpose. If call- 
ed for the purpose of raising money or building or repairing 
the school-house, fifteen days' notice must be given, by post- 
ing up a warrant, or ten days' personal notice. For all 
other purposes no personal notice need be given, and ten 
days' posting up is sufficient. 

3. If the prudential committee shall neglect to warn any 
such annual meeting by posting up the required notice prior 
to the fifteenth day of March, or shall neglect, for the space 
of ten days after application made in writing by three or 
more voters of the district, to call any such special meeting, 
the selectmen upon a like application shall call such annual 
or special meeting, by causing a like notice signed by them 
to be posted up, or served in the manner prescribed in the 
two preceding sections. Ibid., sec. 5. 

The same notice is to be given by the selectmen, in warn- 
ing an annual or special meeting, that is required of the 
prudential committee for a similar meeting. 

4. Any person qualified to vote in town affairs may vote 
at any district meeting in the district in which he resides 
and has his home. Ibid., sec. 6. 

As to who are legal voters, see ch. 3, sec. 11. 

5. The officers of the district shall be a moderator, a clerk 
and a prudential committee not exceeding three, all of whom 
shall be legal voters in the district, and shall hold their offi- 
ces until the next annual meeting, or until others are duly 
elected and qualified in their stead. Ibid., sec. 7. 

6. The clerk, before entering upon the duties of his office, 
shall be sworn to the faithful performance thereof, which 
oath may be administered by the moderator, and shall be re- 
corded. The clerk shall keep a true and perfect record of 
all the doings of each meeting, which shall be signed by 



160 MEETINGS AND OFFICERS 

him ; shall deliver to the selectmen a certified copy of every 
vote to raise money, within ten days thereafter, and shall 
make and certify copies of any record, when required and 
payment therefor tendered. Ibid., sec. 8. 

The form of the oath may be the same as that adminis- 
tered to town officers (see ch. 5, sec. 3) and the record of 
the oath should be made in the record book of the district, 
and signed by the moderator. (See ch. 5, sees. 10, 13.) 

A " certified copy" of a vote is a copy of the record of 
the meeting, made by the clerk, including his own name, 
and attested thus : 

A true copy. Attest : G. R., Clerk of said District. 

7. If any vacancy shall occur in the office of clerk or 
prudential committee, from neglect to choose, or any other 
cause, the selectmen, upon the application of one or mere 
voters in such district, shall fill such vacancy ; and the offi- 
cers thus appointed shall hold their offices until new ones 
are legally chosen and qualified, and shall possess all the 
powers and be subject to all the duties incident to said offi- 
ces. Ibid., sec. 9. 

8. It shall be the duty of the prudential committee to 
select and hire teachers for the district, provide for their 
board, furnish necessary fuel, make such occasional repairs 
in the school-house and furniture as may -be necessary, not 
exceeding in amount five per cent, of the school money for 
the district, notify the superintending school committee of 
the commencement of the summer and winter school, and 
give them all such information and assistance as may be 
necessary for the performance of their duties. Ibid., sec. 10. 

9. If any member of the prudential committee is incom- 
petent, or irresponsible, or mismanages the affairs of the 
district, the selectmen, on the petition of one fourth of the 
legal voters of the district, may dismiss him from office, and 
cause him to be notified of such dismission, by giving to 
him in hand or leaving at his usual place of abode in the 
district, a written notice thereof. Ibid., sec. 11. 

10. The form of the warrant for a school meeting, call- 
ed by the prudential committee, may be : 

To the Legal Voters of School District No. 3, in the town 
of Nashville. 
You are hereby notified to meet at the school-house in 
said district, on Tuesday, the twenty-first day of March 



OF SCHOOL DISTRICTS. 161 

instant, at seven o'clock in the afternoon, for the transac- 
tion of the following business : • 

I. To choose a moderator to preside in said meeting. 

II. To choose a clerk, prudential committee, and other 
necessary officers for the ensuing year. 

III. To see if the district will remove and fit up the 
present school-house, or build a new one, and fix upon a 
location for the same. 

IV. To see if »the district will sell the present school- 
house lot, and buy another lot, and raise money therefor. 

Given under oirr hands at said Nashville, this fourth day 

of March, A. D., 1843. A. E. T. j „ , .. 7 >, ,. 

j t» f Prudential Coin tee 

C T F I °f ^ e ^ s * nc * # 
The return of service on such warrant may be : 
Hillsborough ss., March 21, 1843. This certifies that 
I posted up the within notice at the door of the school-house 
in said district, on the fifth day of March, 1843, and on the 
same day I posted up a like notice at the tavern* of M. T*, 
being one of the most public places in .said district. 

A-. E. T. 
The form of the affidavit may be : 

Hillsborough ss., March 23, 1843. Then the said 
A. E. T. made oath that the above return by him signed is 
true. Before me, 

C. J. F., Justice of the Peace. 

11. The warrant, return of notice and affidavit should be 
recorded by the clerk, and attested as a true copy of the 
original ; and the record of the proceedings of the meeting 
should be similar to that of the town-clerk in case of town 
meetings. See chapters 2, 3, 4 and 5, for general direc- 
tions. 

12. Articles should be inserted in the warrant specifying 
the subjects to be acted on at the meeting, as in the case of 
town meetings. 

13. The form of an application to the prudential com- 
mittee, to call a special meeting, may be as follows : 

To the Prudential Committee of School District No. 3, in 
the town of N. 
You are requested by the subscribers, legal voters of 
said district, to call a special meeting of the legal voters of 

XT* 




162 MEETINGS AND OFFICERS 

said district, and to insert in the warrant therefor an article 
in substance as follows, viz. : 

To see if the district will vote to build a new school- 
house, or to repair the old one, and to raise money and take 
the necessary measures therefor. 

A. B. 
CD. 

N , May 1, 1843. E. F. 

The form of the warrant for such a meeting may be the 
same as for the annual meeting, and the -application should 
be recorded by the clerk with the other papers and pro- 
ceedings. 

14. The form of the application to the selectmen, author- 
ized by sec. 3, may be as follows : 

To the Selectmen of the toion of N. 

Whereas on the first day of May, 1843, application was 
made to the prudential committee of school district No. 3, 
in said town, to call a meeting of the legal voters of said 
district, a copy of which application is as follows: (Here 
insert a copy of the application to the prudential committee, 
date and names of signers ;) and whereas more than ten 
days have elapsed since said application was made, but no 
meeting of said district has been called by said committee : 

We the subscribers, legal voters of said district, therefore 
request you to call a meeting of the legal voters of said 
school district as soon as may be, to act upon the subjects 
specified in said application. 

A. B., C. D.,&c.,&c. 

N , May 15, 1843. 

If the prudential committee have neglected to post up a 
warrant for a meeting by the fifteenth day of March, the 
form of the application may be similar to the foregoing, 
omitting all from " Whereas" down to " said committee" 
and inserting instead — Whereas the prudential committee 
of school district No. 3 in said town, have neglected to 
warn the annual meeting in said district, by posting up a 
warrant therefor prior to the fifteenth day of March, and 
still neglect it : We the subscribers, &c. 

15. The form of the warrant for a school meeting, issued 
by the selectmen, may be thus : 



OP SCHOOL DISTRICTS. 163 

To the Legal Voters of School District No. 3, in the 
town of N. 

By virtue of the authority in us vested by the laws of this 
state, you are hereby notified and warned to meet at the 
school house in said district, on Tuesday, the thirtieth day 
of May, 1843, at three o'clock in the afternoon, to act upon 
the following subjects : 

1. To choose a moderator to preside in said meeting. 

(Here insert the articles or subjects to be acted on.) 

Given under our hands this fifteenth day of May, A. D., 
1843. 

A. B. \ Selectmen 
C. D. \ of 
E. F. j N . 

The selectmen must see that this warrant is posted up 
(which may be done by any applicant or other person,) in 
the manner provided in sections 1 and 2 ; and the return of 
service, affidavit, proceedings at the meeting, and the re- 
cord thereof, may be the same as if the meeting had been 
called by the prudential committee. 

The form of the record may be : 

At a meeting of the legal voters of school district No. 3, 
in the town of N., holden at the school-house in said district, 
on Tuesday, the thirtieth day of May, 1843, at three o'clock 
in the afternoon, pursuant to notice, C. D. was chosen mod- 
erator of said meeting. 

Voted, &,c. Attest : G. R., Clerk of said District. 

16. The form of the application to the selectmen to fill a 
vacancy (see sec. 7) may be as follows : 

To the Selectmen of the town of N. 
Whereas a vacancy now exists in the office of clerk of 
school district No. 3, in said town, by reason of the death of 
C. H., late clerk of said district, we the subscribers, legal 
voters of said district, therefore request you to appoint some 
suitable person to be clerk of said district, according to the 
law in such case made and provided. 

T. D. 
N , May 1, 1843. G. P. 

17. The form of the appointment in such case may be : 
To N. H., of N., in the County of Hillsborough. 

Whereas there is a vacancy in the office of clerk of 



164 MEETINGS AND OFFICERS 

school district No. 3, in said town, and application has been 
made to us, selectmen of said town, by one or more legal 
voters of said district to fill said vacancy ; and whereas we 
have confidence in your capacity and fidelity, we do appoint 
you to be clerk of said school district, and upon your taking 
the oath of office and having the same recorded in the re- 
cord-book of said district, you shall possess all the powers 
and be subject to all the liabilities incident to said office, 
until another clerk is legally chosen and qualified in your 
stead. 

Given under our hands at N., this first day of May, 1843. 

A. B. i Selectmen 
C. D. } of 

E. F. ) N . 

The application, appointment and oath of office should be 
recorded in the record-book of the district. 

18. The form of the petition for the dismissal of a mem- 
ber of the prudential committee may be : 

To the Selectmen of the town of N. 

Whereas G. H., a member of the prudential committee of 
school district No. 2, in said town, is irresponsible, we the 
subscribers, being more than one fourth part of all the legal 
voters of said district, request you to dismiss said G. H. from 
his said office, and to cause him to be duly notified thereof; 
and we also request that you would appoint some suitable 
person to fill the vacancy occasioned thereby. 

N. G. 

N , April 10, 1843. L. O., &,c. &c. 

If the member is incompetent, or mismanages the affairs 
of the district, omit the word " irresponsible,'''' in the form, 
and insert instead the above words, as the case may be. 

19. The form of the dismissal thereon may be : 

To G. H.,one of the Prudential Committee of School 
District No. 2, in the town of N. 

Whereas application has been made to us, selectmen of 
said town, by more than one fourth part of the legal voters 
of said district, to dismiss you from your said office, for the 
reason that you are irresponsible ; and whereas we are sat- 
isfied of the truth of the statements in said application : 

We therefore do, by virtue of the authority in us vested 



OF SCHOOL DISTRICTS. 165 

by law, dismiss you from your said office, and do order that 
you no longer perform any duty therein. 

Given under our hands at said N., this twelfth day of 
April, 1843. 

A. B. i Selectmen 
C. D. } of 

E. FJ N . 

If the dismissal is for any other cause except being irre- 
sponsible, the form of dismissal should be altered accordingly. 

20. The original notice of dismissal should be given to 
the person dismissed, and a copy taken and preserved, upon 
which the return of service should be made thus : 

Hillsborough ss., N , April 12, 1843. This day 

I gave to G. H., within named, in hand the original notice of 
which the within is a true copy. D. W. 

The affidavit may be in common form. 

The petition, order of dismissal, return of service and 
affidavit should all be recorded by the clerk of the district. 

21. The record of the proceedings of every district meet- 
ing should be signed by the clerk ; a record not signed is 
of no avail. All papers recorded should be attested by him 
as true copies. For general directions, see the duties of 
town-clerks in ch. 4. 

22. Contracts made by the prudential committee, which 
he is authorized by law to make, are the contracts of the 
district. The committee is a public agent, and not person- 
ally liable for any thing done in pursuance of his legal au- 
thority ; if not so authorized, he may make himself personally 
liable. 15 Pick. R., 39. 

23. The clerk is not liable for certifying to the selectmen 
the vote of the district to raise money, although the meeting 
was illegal. 17 Pick. R., 208. 

24. The form of a certificate of a vote raising money 
may be : 

To the Selectmen of the town of N. 

I hereby certify that at a legal meeting of the legal voters 
of school district No. 1 in said town, duly warned, and hold- 
en pursuant to notice at the school-house in said district, on 
the first day of May, 1843, the following vote was passed: 

-* Voted, that the district raise the sum of four hundred 
dollars, for the purpose of building a school-house in said 
district." R. G., Clerk of said District. 



166 



CHAPTER 39 



OF SCHOOL HOUSES. 



10. Petition of voter aggrieved. 

11. Committee appointed thereon. 

12. Form of notice thereon. 

13. Proceedings and report. 
Proceedings under section 5. 
Petition to lay out lot, form. 
Proceedings on such petition. 
Vote to raise money, legal. 
Assessment of such tax. 
One school-house only. 

20. Liability of voters for tax. 

21. Power of town over district. 



1. School houses, how erected, 
repaired and furnished. 

2. If voters aggrieved, remedy. 

3. Proceedings on complaint. 

4. Costs, how allowed in such 
case. 

5. If district disagree on location. 

6. If district destitute, remedy. 

7. If owner of lot selected refus- 
es to sell, remedy. 

8. Proceedings in such case. 

9. School-house tax, how assess- 
ed. 

1. At any meeting, legally holden for the purpose, any 
district may vote to build, purchase, repair, alter or remove 
a school-house in and for such district, and other necessary 
buildings therefor, and to furnish the same with all necessary 
apparatus and furniture for the use of the school therein ; 
may decide upon the location thereof, and purchase land 
therefor not exceeding half an acre ; may choose committees 
with power to carry said votes into effect, and may raise 
money therefor. R. S., ck. 71, sec. 1. 

The power of the district to "furnish" the school-house 
" with all necessary apparatus and furniture 11 is in terms 
new. All such apparatus as maps, globes and other con- 
trivances for illustrating the studies pursued in the district 
school, may be "necessary," if the district so vote and di- 
rect their purchase. 

2. If any three or more voters in such district are aggriev- 
ed by such location, they may apply by petition to the select- 
men, who, if they think expedient, shall appoint a committee 
of three or five qualified voters of the town, not resident in 
the district, to examine and report thereon. Ibid., sec. 2. 

3. Said committee shall appoint a time and place of hear- 
ing said petition, and shall notify one or more of said petition- 
ers, and also the prudential committee or clerk of the district 
thereof; and after such hearing, their report thereon, signed 
by them, returned to the selectmen and recorded in the books 



OF SCHOOL HOUSES. 167 

of the town, shall be binding upon said district as if such 
new location had been made by a vote of the district. Ibid., 
sec. 3. 

4. If such location is changed, costs shall be taxed by the 
committee in favor of the petitioners for the reasonable ex- 
penses of the committee and of the petitioners, which shall 
be paid by the district ; if the location is not changed the 
expenses of the committee shall be paid by the petitioners. 
Ibid., sec. 4. 

5. If at any meeting the district do not agree upon a lo- 
cation for a school-house, the selectmen, upon the petition 
of three or more voters in the district, shall appoint a time 
and place of hearing thereon, notify one or more of the pe- 
titioners, and the prudential committee or clerk of the district 
thereof, and after such hearing, their report designating a 
location, which shall be recorded in the books of the town, 
shall be binding upon such district as if made by a vote 
thereof. Ibid., sec. 5. 

6. If any district is destitute of a school-house, or suffers 
the same to be out of repair, or shall be ordered to remove 
or fit up the same, or to raise any sum of money, or do any 
act required by law, and shall neglect so to build, repair, 
remove or fit up such school-house, or raise such sum, or 
do such act, the selectmen, upon the petition of three or 
more voters resident in the district, stating such facts, may 
assess and collect such sum of money as may be necessary, 
and cause such house to be built, removed, repaired or fitted 
up, such moneys to be expended, and such orders to be ex- 
ecuted in such manner as they shall think expedient. Ibid., 
sec. 6. 

7. If a suitable place for the location of a school-house is 
designated in either of the ways aforesaid, and the owner 
shall refuse to sell the same for a reasonable price, the se- 
lectmen, upon petition therefor, may lay out said lot, not ex- 
ceeding one eighth of an acre, for that purpose, and appraise 
the damages to the owner ; and the proceedings thereon, and 
for obtaining increased damages in case the owner is dis- 
satisfied, shall be the same as in case of a highway laid out 
by the selectmen. Ibid., sec. 7. See ch. 28. 

8. A record of the doings of the selectmen shall be made 
by them in the books of the town ; and upon payment or 
tender of the damages so assessed by the selectmen, the 
land so laid out shall vest in said district, but shall revert to 



168 



OF SCHOOL HOUSES. 



the owner whenever the district shall vote to discontinue 
the use thereof, or shall neglect to use the same for two years 
successively. Ibid., sec. 8. 

9. For the purposes aforesaid, every person shall be taxed 
in the district in which he lives, for his poll and all the per- 
sonal estate which he holds in the town ; and all real estate 
in the town shall be taxed in the district in which it is. 
Ibid., sec. 9. 

In the assessment of school-house taxes, selectmen should 
pay particular regard to this section, as its provisions are 
new. 

10. The form of a petition by persons aggrieved by the 
location of a school-house may be : 

To the Selectmen of the town of N. 

Whereas the school-house in school district No. 3, in said 
town, is so located as to be inconvenient and unjust to the 
subscribers, legal voters in said district, who are aggrieved 
thereby : we therefore request you to appoint a committee 
to examine and report upon the same, and to cause a new 
and more equitable location and record thereof to be made 
according to law. N. D. 

N , May 1, 1843. L. M., &c. 

11. The appointment of a committee thereon may be : 
To L. B., J. N. and T. S., of N., in the County of H. 

Whereas application has been made to us, selectmen of 
the town of N., legal voters in school district No. 3, in said 
town, stating that they are aggrieved by the location of the 
school-house in said district, and requesting us to appoint a 
committee to examine and report thereon : Now we, repos- 
ing confidence in your judgment and integrity, do appoint 
you a committee for said purpose ; and you are to appoint a 
time and place of hearing, and notify said petitioners and 
district thereof, to examine said location, and hear the said 
parties, and make report to us thereon : 

Given under our hands at N., this first day of May, 1843. 

A. B. } Selectmen 

C. 

E. 

12. The form of the notice thereon may be : 






B. } Selcctmei 
D. \ of 



OF SCHOOL HOUSES. 169 

To school district No. 3, in the town of N., and to all persons 

aggrieved by the location of the school-house in said 

district. 

Whereas we, the subscribers, have been appointed by 
the selectmen of said town, upon the application of three or 
more legal voters in said district, aggrieved by the location 
of the school-house therein, a committee to examine and re- 
port thereon ; you are hereby notified that we shall meet for 
said purpose at the school-house in said district, on the tenth 
day of May instant, at nine o'clock in the forenoon, when and 
where you may attend, and you shall be heard. 

Given under our hands this second day of May, 1843. 



L. B. ) 
J. N. } 
T. S. j 



Committee. 



Two such notices should be made by the committee, one 
for the district and the other for the petitioners, and should 
be served by giving the originals and keeping a copy, upon 
which a return and affidavit may be made as in other cases. 

13. At the time and place appointed, the committee should 
attend, examine the location of the house and the situation 
of the district, hear all the evidence offered, and make a 
written report to the selectmen, which should be annexed 
to their appointment. The form may be thus : 

The subscribers, by virtue of the commission hereto an- 
nexed, appointed by the selectmen of the town of N. a com- 
mittee to examine the location of the school-house in school 
district No. 3, in said town, and report whether the legal 
voters in said district are aggrieved thereby, having appoint- 
ed the tenth day of May, 1843, at nine o'clock in the fore- 
noon, at the school-house in said district, as the time and 
place of hearing thereon, and having caused the petitioners 
and also said district to be duly notified thereof, and having 
carefully examined said location, and the situation of said 
district, and heard all the evidence and arguments offered 
by both parties, and attentively considered the same, are of 
the opinion that said location ought not to be changed, and 
that said petitioners are not aggrieved thereby. And we 
further order that the costs of this hearing, taxed at , be 
paid by the petitioners. Witness our hands, this tenth day 
of May, 1843. L. B. \ 

J. N. > Committee. 
o T. S. ) 



170 OF SCHOOL HOUSES. 

The petition, appointment, notice, return of service, af- 
fidavit and report of committee, should be all recorded in 
the books of the town by the town-clerk, and attested by 
him. 

14. The proceedings under sec. 5 are similar to those un- 
der sec. 2, and the forms above given for the latter may be 
easily changed, so as to be adapted to the former. 

15. The form of a petition to lay out a school-house lot 
may be : 

To the Selectmen of the town of JY. 

The subscribers, legal voters of school district No. 3, in 
said town, respectfully represent that said district, by a vote 
at a meeting legally called for that purpose, designated as a 
spot whereon to set their school-house a lot of land in said dis- 
trict, owned by T. G., and bounded thus : (Here insert the 
boundaries ;) but the said T. G. refuses to sell said lot for a 
reasonable price : We therefore request you to lay out said 
lot, not exceeding one eighth of an acre, for the purpose of 
a school-house lot for said district, and to appraise the dam- 
ages to the owner thereof, and to cause a record thereof to be 
made, according to the law in such cases made and provided. 

L. B. 

N ,May 1, 1843. S. C, &c. &c 

16. The form of the notice on such petition may be : 
Upon the foregoing petition it is ordered, that notice be 

given to the said T. G., and to said school district No. 3, to 
appear at the house of N. R., in said N., on Wednesday, 
the sixteenth day of May instant, at nine o'clock in the 
forenoon, and shew cause, if any they have, why the request 
of said petitioners should not be granted, by giving to said 
T. G. and to the clerk of said district in hand, or leaving 
at the usual place of abode of each, a true and attested copy 
of said petition and this order thereon, at least fourteen days 
previous to the said sixteenth day of May. 

Given under our hands this first day of May, 1S43. 

A. B. } Selectmen 



A. n. ) belectmei 
C. D. } of 
E. F. ) N . 



The certificate that notice has been duly given and the 
affidavit thereof should be made on the back of the order, 
as set forth in ch. 28. 

The selectmen having met at the time and place appointed, 



OF SCHOOL HOUSES. 171 

and having heard the parties and their evidence and argu- 
ments, if they find the statements in the petition to be 
sustained, may lay out the lot or a part of it, " not exceed- 
ing one eighth of an acre, and appraise the damages to the 
owner." The form of the laying out may be as follows : 

Upon the foregoing petition the subscribers, selectmen 
of the town of N., having caused notice to be given as 
aforesaid to T. G., the owner of the land hereinafter men- 
tioned, and to school district No. 3, in said town, to appear 
at the house of N. R., in said N., on Wednesday, the six- 
teenth day of May, 1843, at nine o'clock in the forenoon, 
to shew cause, if any they had, why the request of said pe- 
tition should not be granted ; and having met at said time 
and place, and fully heard all persons who chose to attend 
and be heard, as well in regard to laying out said lot as to 
the damages to be awarded therefor, and having carefully 
considered said petition, and being satisfied that said school 
district No. 3 in said town did legally designate the lot de- 
scribed in said petition as and for a school-house lot for 
said district, and that said T. G., the owner thereof, refused 
to sell the same to said district for a reasonable price : We 
are of the opinion that said lot ought to be laid out, for the 
purpose of a school-house lot for said district, and do hereby 
for said purpose lay out the same, to be bounded thus : 
[Here insert the boundaries of the lot taken.] And we ap- 
praise the damages to the said T. G. of taking said lot as 
aforesaid at the sum of dollars, which is to be paid by 

said district. 

Given under our hands at N., this sixteenth day of May, 
in the year eighteen hundred forty-three. 

A. B. 1 Selectmen 
of 



A. JtJ. \ tSeiectmi 
C. D. } of 
E. F. ) N 



The petition, order of notice, affidavits and return of laying 
out should be recorded by the town-clerk, as in the case of 
a record of laying out a highway. For other directions, 
see ch. 28. 

17. A vote by a school district " to raise a sum of money 
sufficient to remove the school-house in this district, and to 
purchase land to set the school-house upon," is legal, and 
after this sum is ascertained, by removing the school-house 
and purchasing the lot, the selectmen may assess it ; but 



172 OF SCHOOL HOUSES. 

not until it is so ascertained. The safer course, however, 
is to raise a specific sum. 3 N. H. R., 292. 

18. The direction in the statutes requiring selectmen to 
assess a school-house tax within thirty days after notice, is 
merely directory ; the assessment will be legal if made after 
that time — 3 N. H. R., 32S. And need not be made by 
the selectmen who were in office when the vote was passed 
— 3 Mass. R., 231. The selectmen are to limit the time for 
collecting and paying in the money voted, not the district — 
Ibid. If the selectmen to whom the certificate of such tax 
is given neglect to assess it, or assess it informally, upon a 
new certificate their successors may assess it ; no new vote 
is needed — Ibid; and if the selectmen make an erroneous 
assessment they may revoke it, and make a new one. Ibid. 

A school district, after having voted to raise money, may, at 
a legal meeting called for the purpose, rescind the vote ; and 
the selectmen, upon receiving notice of such vote to rescind, 
by a certified copy, will have no power after such notice to 
make an assessment or to issue a warrant to collect it. 3 
Mass. R., 233. 

19. If a district has a sufficient school-house, a vote to 
build another will be illegal. 3 Fairfield R., 258. 

20. If after a tax has been raised and assessed on the in- 
habitants of a school district, a part of the district is set off 
into another district, the inhabitants of such part remain 
liable to pay the tax, the debt being fixed by the assessment. 
5 Pick. R., 323. If a person has moved into the district 
after the invoice in April is taken, it is doubtful whether he 
is liable for a tax voted by the district, although he was an 
inhabitant when the vote to raise the money was passed — 
Ibid. ; and it is also probable that he is not liable, if he has 
removed from the district and ceased to be an inhabitant 
before such vote was passed. 

21. In Massachusetts a town has no power to destroy a 
district without its consent, or so far to alter its limits as to 
effect the same object ; nor to annul or impair any contract 
made by the district, but only to alter limits as necessity 
requires. 5 Pick. R., 323. 



173 



CHAPTER 40. 



OF SCHOOL TAXES AND SCHOOL MONEY. 



9. Literary fund distributed. 

10. Unincorporated places, duty. 

11. How to be appropriated. 

12. Misappropriation, penalty. 

13. Rail-road tax distributed. 

14. District may hold property. 

15. School tax, how assessed. 

16. Money belongs to selectmen. 



1. School tax, how assessed. 

2. Town may raise more. 

3. School money appropriated. 

4. School money, how assigned. 

5. Neglect of selectmen, penalty. 

6. Neglect of prudential commit- 
tee to expend, penalty. 

7. School, where to be kept. 

8. Towns, when exempted, how 

far. 

1. The selectmen of each town shall assess annually upon 
the polls and rateable estate by law taxable therein, a sum to 
be computed at the rate of one hundred dollars for every 
dollar of the public taxes appropriated to such town, and so 
for a greater or less sum. R. S., cli. 72, sec. 1. 

2. The town, at any legal meeting for the purpose, may 
raise a sum exceeding the sum aforesaid, which shall be as- 
sessed in the same manner. Ibid., sec. 2. 

3. Such sum when collected shall be appropriated to the 
sole purpose of keeping an English school or schools within 
such town, for teaching reading, writing, English gram- 
mar, arithmetic, geography, together with such other branch- 
es of English education as are adapted to the advancement 
of the school, including the purchase of necessary fuel for 
{he school, and occasional repairs, as specified in this Title. 
Ibid., sec. 3. See ch. 38, sec. 8. 

4. The selectmen shall assign to each district a propor- 
tion of the money thus assessed, according to the valuation 
of the district for the year, or in such other manner as the 
town at the annual meeting shall direct, and shall pay over 
the same to the prudential committee of the district. Ibid., 
sec. 4. 

The district may require the prudential committee to give 
bond for the faithful discharge of his duties ; and it would 
be prudent so to do, to avoid losses, especially if the district 
has a school fund. 



174 SCHOOL TAXES AND SCHOOL MONEY. 

5. If the selectmen of any town neglect to assess or 
assign, or pay over the school money as aforesaid, they shall 
forfeit and pay for each neglect a sum equal to that so neg- 
lected to be assessed or assigned, or paid over, which shall 
be for the use of the district aggrieved thereby, and may be 
recovered by action of debt in the name of such district, by 
the prudential committee. Ibid., sec. 5. 

6. If the money so assigned and paid over to the pruden- 
tial committee of any district shall be by him not expended 
according to law, he shall forfeit for each offence a sum not 
less than the sum so unexpended or not expended legally, 
and not exceeding twice said sum, to be recovered by in- 
dictment, or by information, the cost to be paid to the county 
treasurer, and the penalty to be paid to the selectmen for 
the use of the district. Ibid., sec. 6. 

7. It shall be unlawful to keep the district school in 
any other place than in the school-house belonging to the 
district, unless there be no school-house, or the school-house 
be out of repair, or not of sufficient size to accommodate 
the school ; in which cases the prudential committee may, 
with the consent and approbation of the selectmen, provide 
suitable rooms and conveniences for the use of the school at 
the expense of the district. Ibid., sec. 7. 

8. The town of Portsmouth and such other towns as le- 
gally adopt the provisions of the chapter of this Title made 
for the town of Portsmouth, are exempted from the opera- 
tion of the foregoing provisions, so far as the same relate to 
the mode of appropriation and expenditure of said school 
money. Ibid., sec. 8. 

9. Every banking corporation in the state shall pay into 
the treasury, on or before the twentieth day of June annual- 
ly, one half of one per cent, on the amount of the capital 
stock of the bank at that time, for a literary fund ; and the 
treasurer shall assign and distribute, in the month of June 
annually, all sums so received by him among the several 
towns and places in the state, according to the then existing 
apportionment of the public taxes. K. S., c7i. 75, sees. 1, 4. 

10. No unincorporated place shall receive such propor- 
tion until a treasurer or school agent shall have been chosen 
to receive and appropriate the same. Ibid., sec. 5. 



SCHOOL TAXES AND SCHOOL MONEY. 175 

The proper evidence of the choice of an agent is a copy 
of the record of the town meeting at which he was chosen, 
certified and attested by the town-clerk. 

11. The money received by any town or place as afore- 
said shall be applied to the maintenance of common schools, 
or to other purposes of education, in addition to the sums 
required to be raised by law, and in such manner as the 
town shall direct. Ibid., sec. 6. 

12. If any town or incorporated place, or the agent of any 
unincorporated place, shall apply any sum of money so re- 
ceived to any other purpose than as aforesaid, the town, 
place or agent so offending shall forfeit and pay double the 
sum so misapplied, to be recovered by indictment for the 
use of the county. Ibid., sec. 7. 

13. The tax upon the stock of rail-road corporations, paid 
from the state treasury to the towns in which the stock- 
holders live, is required "to be by the selectmen of the 
towns receiving the same (not by the town,) appropriated in 
just proportions to the several purposes for which taxes 
are assessed upon the polls and estates of such stockholders 
within such town." The selectmen should therefore ap- 
propriate a "just" share of such sum to the support of 
schools. 

14. A district being now a corporation may take and hold 
property for the benefit of the school in the district. A 
gift of property to a district, the interest to be expended 
for the benefit of the school in addition to the school money, 
would be as useful an appropriation as a wealthy and patri- 
otic man could desire. 

15. All taxes for the year are required to be assessed upon 
the invoice made in April — R. S., ck. 43, sec. 1 ; and no 
provision is made for taking an invoice at any other time. 
In making any assessment of a tax relating to school-houses, 
particular attention should be paid to the new provisions in 
ch. 39, sec. 9. 

16. The school money assessed by the selectmen is not 
the money of the town, but of the selectmen, they being per- 
sonally responsible for its proper appropriation ; and so also 
is the money above what is required by law which is voted 
to be raised by the town. Even in the hands of the town 



176 



REGULATION, INSTRUCTION AND 



treasurer it is the money of the selectmen and not of the 
town. 3 JV. H. R., 57. But if paid over to the district it 
ceases to be the property of the selectmen. 






CHAPTER 41 



OF THE REGULATION, INSTRUCTION AND INSPEC- 
TION OF SCHOOLS. 



1. Superintending committee, 
how appointed. 

2. Duties of such committee. 

3. Teachers unfit dismissed. 

4. Unruly scholars dismissed. 

5. Inspection of schools dispens- 
ed with, when. 

6. Scholars may be classified. 

7. Where scholars may attend. 

8. Masters to be examined. 

9. Mistresses to be examined. 



10. Teacher not to be paid, un- 
less. 

11. Class books, how determined. 

12. Sectarian books prohibited. 

13. Poor children, how furnished. 

14. Report of superintending com- 
mittee, how made. 

15. Compensation of committee. 

16. Virtues to be inculcated. 

17. Dismissal of teachers, form. 

18. Form of certificates. 

19. Form of school report. 



1. Each town shall annually in the month of March elect 
by ballot a superintending school committee, consisting of 
not less than three nor more than five persons ; and whenever 
any town shall neglect to choose such committee as aforesaid, 
the selectmen, before the twentieth day of April, shall ap- 
point said committee. R. S., ch. 73, sec. 1. 

This is a new provision. The committee must be elected 
by ballot, and must take the oath of office, like other town 
officers. 

2. It shall be the duty of said committee to examine every 
person proposing to teach any district school in such town ; 
to visit and inspect every school, at least twice in each year ; 
to inquire into the regulation and discipline thereof, and 
suggest any necessary alterations ; to examine the proficien- 



INSPECTION OF SCHOOLS. 177 

cy of the scholars, and to use their influence that all the 
youth of each district attend and profit by the school therein. 
Ibid. , sec. 2. 

3. Such committee, upon the petition of the majority of 
the legal voters in any district, shall dismiss the teacher in 
such district, and shall dismiss every teacher who is unfit 
to teach, notwithstanding a certificate has been given ; and 
such teacher shall be entitled to compensation until such 
dismission, but no longer. Ibid., sec. 3. 

The meaning of this section is probably this : 

If a majority of the legal voters of the district petition to 

have the teacher dismissed, the superintending committee 

shall dismiss him forthwith, whether fit or unfit to teach ; 

but if any teacher is unfit to teach, they shall dismiss him 

without any petition therefor. 

4. Such committee may, upon application of the teacher 
or any inhabitant of the district, dismiss any scholar from 
the school who will not conform to the reasonable regu- 
lations of the school ; and it shall be unlawful for such 
scholar to return to or remain in said school until restored 
by the teacher or by the superintending school committee. 
Ibid. , sec. 4. 

5. Any town, at its annual meeting or at any adjournment 
thereof, or at any meeting specially called for that purpose, 
may vote to dispense with the services of the superintend- 
ing school committee, so far as relates to the examination 
and inspection of schools. Ibid., sec. 5. 

This does not dispense with the examination of teachers, 
as without a certificate (sec. 10,) no teacher is entitled to 
any compensation. 

6. When the number of scholars in any district amounts 
to fifty or more, such district, at a meeting legally holden 
for that purpose, by a vote of three fourths of the legal vo- 
ters present may divide said scholars into two or more di- 
visions, according to age or acquirements, or both, and may 
direct under what teacher each division shall be instructed. 
Ibid., sec. 6. 

In order that it may appear on the records that the vote 
was adopted by a majority of three fourths, the whole num- 
ber of " legal voters present" should be ascertained and 



178 REGULATION, INSTRUCTION AND 

recorded by the clerk, and also the number of persons voting 
in favor. The record may be thus : 

Voted, that the scholars in this district be divided into 
three divisions, according to their acquirements, each divis- 
ion to be under the care of one teacher, and that the pru- 
dential committee make such division and classification ; 
the whole number of legal voters of the district present 
being forty, and thirty of said voters having voted in favor 
of such division. 

7. No person shall have a right to send to, or receive any 
benefit from any school in a district in which he is not a re- 
sident, without the consent of such district. Ibid., sec. 7. 

8. No person shall be employed as a school master unless 
he is a citizen of the United States, and shall produce a 
certificate from the superintending school committee of the 
town where such school is to be kept, that he is well quali- 
fied to instruct youth in the various branches required to be 
taught in an English school in this state, and produce satis- 
factory evidence of his good moral character. Ibid., sec. 8. 

9. No person shall be employed as a school mistress un- 
less she shall produce, a certificate from the superintending 
school committee of the town where the school is to be 
kept, that she is suitably qualified to teach the English lan- 
guage grammatically, and the rudiments of arithmetic and 
geography, and shall produce satisfactory evidence of her 
good moral character. Ibid., sec. 9. 

10. The district shall be liable for the wages of the teacher 
and for all contracts lawfully made by the prudential com- 
mittee ; but no person shall receive any compensation for 
teaching a district school, without producing to the pruden- 
tial committee the certificate by this chapter required. 
Ibid., sec. 10. 

11. The superintending school committee shall determine 
and direct the class books to be used in the district schools 
of the town ; and the parents, masters or guardians of the 
scholars attending such schools shall supply said scholars 
with the books so directed to be used. Ibid., sec. 11. 

12. No book shall be directed to be used as a school book 
which is calculated to favor any particular religious or po- 
litical sect or tenet. Ibid., sec. 12. 






INSPECTION OF SCHOOLS. 179 

13. If any poor child attending any district school is des- 
titute of the necessary class books, the selectmen shall pro- 
vide such books at the expense of the town, upon application 
therefor. Ibid., sec. 13. 

14. The superintending school committee shall make out 
annually a report, and present the same to the town at its 
annual meeting, stating the number of weeks which the pub- 
lic schools have been kept in each district in summer and in 
winter, and what portion thereof has been kept by male and 
what portion by female teachers; the whole number of 
scholars that have attended each school ; the progress made 
in each school in the various branches of learning ; the num- 
ber of children between the ages of four and fourteen years 
in each district, that have not attended school therein ; and 
the number of persons in each district between the ages of 
fourteen and twenty-one years who cannot read and write, 
with such suggestions as may be useful upon the manage- 
ment of schools, and the subject of education. Ibid., sec. 14. 

15. Such committee shall receive from the town a rea- 
sonable compensation for all services required by law to be 
performed by them. Ibid., sec. 15. 

16. It shall be the duty of all persons entrusted with or 
engaged in the instruction of the young, diligently to im- 
press upon their minds the principles of piety and justice, a 
sacred regard to truth, love of country, humanity and be- 
nevolence ; sobriety, industry and frugality ; chastity, mod- 
eration and temperance ; and all other virtues which are 
the ornament and support of human society, and to endeavor 
to lead them into a particular understanding of the tendency 
of all such virtues to preserve and perfect a republican form 
of government, to secure the blessings of liberty and to pro- 
mote their future happiness, and the tendency of the opposite 
vices to degradation, ruin and slavery. Ibid., sec. 16. 

17. The form of a petition to dismiss a teacher may be 
thus : 

To the Superintending School Committee of the town of N. 

We the subscribers, a majority of all the legal voters in 
school district No. 3, in said town, respectfully request you 
forthwith to dismiss R. M., a teacher of the school in said 
district, as he is in our opinion not qualified to teach the 
same. A. B. 

N , December 5, 1843. C. D., &c. &c. 



180 FORMS. 

The order of dismissal on such petition may be thus : 
To R. M., a teacher of the district school in school district 
No. 3, in the town of N. 

Whereas the majority of the legal voters in said district 
have petitioned us to dismiss you from your said situation, 
you are therefore dismissed therefrom, and will take notice 
that from and after the day on which you receive this no- 
tice your employment as a teacher in said school will cease. 

G. H. i Superintending 
L. C. B. > School Committee 

E. S. j ofN . 

N , December 6, 1843. 

The form of a dismissal for unfitness may be thus : 
To R. M., a teacher of the school in school district No. 3, 
in the town of N. 

Whereas we have made examination of said school and of 
its management and instruction, and are satisfied that the 
scholars do not make suitable progress in their studies, and 
that you do not possess the requisite qualifications for a use- 
ful teacher of said school, you will therefore take notice, 
that from and after the day on which you receive this notice, 
your employment as a teacher in said school is at an end. 

L. C. B. \ Superintending 

D. D. P. > School Committee 

E. S. ) of N . 

JY , December 5, 1843. 

18. The form of a certificate of qualifications may be : 
To whom it may concern: This certifies that we have 
examined A. B., in respect to his qualifications to teach the 
various branches required to be taught by a schoolmaster (or 
mistress) in the district schools in this state, and are of 
opinion that he is qualified according to law. 

Witness our hands this day of , 1843. 

L C. B. \ Superintending 

D. D. P. > School Committee 

E. S. ) ofN . 

The form of a certificate of character may be thus : 

To whom it may concern : This certifies that we have 



SCHOOLS IN PORTSMOUTH. 



181 



been acquainted with the bearer, A. B., of this town, and 
that said A. B. is a person of good moral character. 

N. B., L. H., &c 
19. The superintending committee, in making their an- 
nual report, will find it convenient to make a table, as apart 
of the report, something in the following form : 



p 

o 

D- 

25' 


s 

3 H 
3 2 
5 3 

p o 
•3 i-t, 


Names of teachers. 


If 

trq 3 
Er to 

O (B 
• J 8 


No. between 4 and 
14 years, who have 
not attended school. 


a* 

Is 
& * 

rr o 

8 rr 

_. p 

• <s 

CD 


OB 

S'g 
&l 


No. of persons be- 
tween 14 and 21 years, 
unable to read 
and write. 




1st 

2d 

1st 

"2d" 


Miss S. A. C. 


16 
12 
16 


13 


27 
40 
45 


40 
,45 


o 


1 


Mr. R. K. 


0_ 
~T" 

9 




2 


Miss C. R. G. 


1 


Mr. W. W. 


9 


36 



Other columns may be added, as, amount of money as- 
signed to each district, wages of teachers, number of males 
and number of females attending school, average attendance, 
number in each class, boohs, &c. &c. 



CHAPTER 42 



OF SCHOOLS IN THE TOWN OF PORTSMOUTH. 



1 . High schools to be kept. 

2. Prudential committee, choice. 

3. Prudential committee, duty. 

4. High school committee, what. 

5. High school committee, duty. 

6. Vacancies, how filled. 

7. Reports to be made by both. 

8. Scholars, how selected. 



9. Qualifications of teachers. 

10. Class books, how determined. 

11. Money, how apportioned. 

12. Town may raise more money. 

13. Neglect to assess, penalty. 

14. General school laws in force. 

15. This chapter adopted, how. 



1. There shall be kept and maintained in the town of 



182 SCHOOLS IN PORTSMOUTH. 

Portsmouth, in addition to the district schools, at least two 
high schools, one for males and the other for females ; in 
which shall be taught all the branches usually taught in an 
English grammar school, with such additional branches as 
the town may direct. R. S., ch. 74, sec. 1. 

2. The prudential committee of each district shall con- 
sist of three or more persons, to be chosen by ballot by the 
district, the first named of whom shall be chairman, and to 
hold their office until the next annual meeting, and until 
others are chosen and qualified in their stead. Ibid., sec. 2. 

3. They shall perform all the duties of the superintend- 
ing school committee as well as of a prudential committee, 
except as is hereinafter specified, and shall determine and 
direct what class-books shall be used in their respective dis- 
trict schools, which shall be furnished by the parents, mas- 
ter or guardian of any child attending said school. Ibid., 
sec. 3. 

4. The several chairmen of the prudential committees shall 
constitute a board for the superintendence of the high schools 
aforesaid, to be called the high school committee. Ibid., 
sec. 4. 

5. They shall examine and contract with the teachers of the 
high schools, fix and pay their salaries, provide all necessary 
fuel and apparatus for the schools, receive and appropriate 
the money assigned to such schools, regulate the admission 
of scholars, prescribe the class-books to be used, and trans- 
act all other business relating to the government of said 
schools. Ibid., sec. 5. 

6. If there shall be a vacancy in either of said commit- 
tees, either from neglect to choose, or any other cause, the 
selectmen shall immediately fill such vacancy. Ibid., sec. 6. 

7. Each prudential committee and the high school commit- 
tee shall annually, on or before the first day of March, make 
a report of their doings to the selectmen, containing an ac- 
count of their receipts and expenditures for the year, the 
number of schools under their control, the number of pupils 
of each sex belonging to each school, the average number 
of each sex attending school, their ages, the various branches 
of study taught in each school, and the number of scholars 
in each branch, and such other matters as may serve to 
present a general view of the condition of each school ; and 
the selectmen shall lay such reports before the town at its 
annual meeting. Ibid., sec. 7. 



SCHOOLS IN PORTSMOUTH. 183 

S. Said high schools shall be for the common benefit of 
all the districts of said town, and each district may send an 
equal proportion of scholars, possessing the requisite quali- 
fications, to each of the high schools, under such regulations 
as may from time to time be established by the high school 
committee, and this proportion shall be determined as nearly 
as may be by the number of pupils attending school in each 
district. Ibid., sec. 8. 

9. No person shall be employed as a teacher in either of 
said high schools who is not qualified to teach English gram- 
mar, book-keeping, geometry, surveying, navigation, men- 
suration, algebra, astronomy and natural history, besides the 
qualifications required of teachers of district schools. The 
town or the high school committee may require such addi- 
tional qualifications as they shall think expedient. Ibid., 
sec. 9. 

10. The high school committee shall determine and di- 
rect what class books shall be used in the several high schools, 
which shall be furnished by the parents, master or guar- 
dian of every child attending said schools. Ibid., sec. 10. 

11. The selectmen shall annually assign and pay over to 
the high school committee such portion of the school money 
as they shall think sufficient for the support of said schools, 
or as the town shall direct ; and shall assign and pay over 
the balance to the several district committees, as nearly as 
may be in proportion to the number of scholars in each dis- 
trict respectively. Ibid., sec. 11. 

12- Said town, at its annual meeting, or at any meeting 
called for that purpose, shall raise so much money as is ne- 
cessary for erecting, enlarging, repairing, purchasing, re- 
moving or hiring school-houses and other buildings for the 
accommodation of schools therein, with necessary furniture 
and apparatus, and the selectmen shall assess such sum upon 
the polls and rateable estates within the town, and shall cause 
the same to be collected like other town taxes, and shall 
appropriate the same for the purposes for which it was 
raised. Ibid., sec. 12. 

13. If the selectmen shall neglect to assess, collect, ap- 
portion, pay over or appropriate any sum of money in the 
manner prescribed by law, or if either of the committees 
aforesaid shall neglect so to appropriate, or shall misappro- 
priate the same, the person so offending shall be liable to the 



184 SCHOOLS IN PORTSMOUTH. 

same penalty provided in case of neglect of selectmen to as- 
sess and apportion school money. Ibid., sec. VS. 

14. All the provisions contained in the general laws of 
this state relating to schools, shall be in force in the town of 
Portsmouth, except so far as the same are herein modified or 
rescinded. Ibid., sec. 14. 

15. Any town, at its annual meeting, or at any meeting 
lawfully called for the purpose, may adopt the provisions of 
this chapter, which shall then extend and apply to such town 
as fully as to the town of Portsmouth. Ibid., sec. 15. 






TITLE VI. 



OF PAUPERS AND THE PREVENTION OF 
PAUPERISM. 

Chapter 43. Of the settlement of paupers. 

Chapter 44. Of the support and disposal of paupers. 

Chapter 45. Of paupers not chargeable to any town or 
person in this state. 

Chapter 46. Of the maintenance of bastards. 

Chapter 47. Of the guardianship of spendthrifts and in- 
sane persons. 

Chapter 48. Of the duty of selectmen relative to appren- 
tices and insane persons. 



CHAPTER 43 



OF THE SETTLEMENT OF PAUPERS. 



1. Settlements, how gained. 

I. By marriage. 

II. By legitimate birth. 

III. By illegitimate birth. 

IV. By taxation. 

V. By admission or office. 

VI. By incorporation. 

VII. By union of towns. 

VIII. By division of towns. 

IX. By change of lines. 

X. By residence. 



2. No settlement by birth,unless. 

3. Nor unless under an act since 

December 31, 1795. 

4. Settlements, when lost. 

5. Settlements, how changed by 
law. 

6. Acts of January 1, 1796, and 

December 25, 1816. 

7. Act of December 16, 1828. 

8. Who may gain settlements. 

9. Judgment of settlement final. 



1. A legal settlement may be gained by any person in 
any town, so as to oblige such town to support such person, 
if poor and unable to support himself, in the manner follow- 
ing, and not otherwise : 

First. A married woman shall have the settlement of 



186 SETTLEMENT OF PAUPERS. 

her husband, if he has or shall acquire any within this state ; 
otherwise, her settlement at the time of her marriage shall 
continue. 

To this class of cases the following rules and decisions 
are applicable : 

" Any persons cohabiting and acknowledging each other 
as husband and wife, and generally reputed to be such, for 
the period of three years, and until the decease of one of 
them, shall be deemed after such decease to have been le- 
gally married." R. S., ch. 149, sec. 11. In all other cases 
there must be proof of a marriage which was legal accord- 
ing to the statutes in force when the marriage was con- 
tracted. 

When a marriage takes place between a female pauper 
of one town and a male pauper of another town, the settle- 
ment of the female is changed to the latter town, if the 
paupers entered into the marriage contract without force, 
fraud, bribery, or any undue influence on the part of the 
former town. 2 N. H. R., 263. And the marriage would 
be valid and the settlement changed, even though it was 
procured by the selectmen with the intention of changing 
the settlement ; but in such case the selectmen might be 
liable to an indictment therefor. Ibid. 

A marriage solemnized by a person acting as a magis- 
trate or a minister, though the parties may be liable to a 
penalty for not conforming to the statute regulations, is still 
valid. 2N. H.R.,268. 

A marriage within the degrees of consanguinity, or where 
the wife has a husband or the husband a wife living, know- 
ing such husband or wife to be alive, shall, if solemnized 
in this state, be incestuous and absolutely void, and the issue 
thereof illegitimate. R. S., ch- 147, sees. 1, 2, 3; R.S., 
ch. 148, sec. 1. And no settlement can be gained thereby. 
4 Greenleaf R., 292. 

The marriage of a woman with a man who is non compos 
is not valid so as to change her settlement. He is not com- 
petent to make any contract. 12 Mass. R., 365. But if a 
man marries a woman who is non compos, he being able to 
contract lawfully, her settlement will be changed. 

It is immaterial whether the marriage was solemnized in 



SETTLEMENT OF PAUPERS. 187 

this state or not. If the husband has a settlement in this 
state, the wife gains one thereby. 9 Mass. R., 202. 

A settlement acquired by marriage is not lost by divorce, 
unless the cause of divorce is one which shews that the 
marriage never was valid. 9 Mass. R., 203. But a divorce 
destroys every settlement which is only partially acquired. 
13 Maine R., 225. 

The husband and wife are competent witnesses to testify 
concerning their own marriage. 3 Pick. R., 293. 

The wife gains no settlement by residing with her hus- 
band unless he gains a settlement — 1 Grecnlcaf i?., 196; 
nor can she acquire a settlement distinct from that of her 
husband. Ibid., 93. 

If the husband does not reside in a town long enough to 
gain a settlement, and dies, his widow cannot acquire a set- 
tlement by residing there during the space within which, 
if the husband had lived, he would have gained a settle- 
ment. 15 Maine R., 434. 

The settlement of the wife follows that of the husband, 
until a divorce is decreed, though he has abandoned her and 
they live separate — 13 Maine R., 225 ; and though the hus- 
band is married to and living with another woman. Ibid. 

Second. Legitimate children shall have the settlement of 
their father, if any he has within this state ; otherwise the 
settlement of their mother, if any she has, until they gain a 
settlement of their own. 

The following rules and decisions apply to this head : 

Legitimate children follow the settlement of their father 
until they are emancipated. 3N. H. R., 316. As a gen- 
eral rule they shall be considered as emancipated at the age 
of twenty-one years. But when they are compelled to re- 
main longer with a parent on account of infirmity of body 
or mind, so long as they so remain they are not to be con- 
sidered as emancipated. 3 ditto, 331. It is not necessary 
that the person should be wholly deprived of reason, or ac- 
tually confined to his bed by sickness. It is enough if the 
state of his health is such that it is fit and proper that he 
should remain under the care of his parent. Ibid. 3 
GreenleafR., 3S8. 

A minor is not emancipated by going to reside with a 
stranger, under a contract between the father of the minor 
and the stranger that he shall continue with him until he is 



188 SETTLEMENT OF PAUPERS. 

twenty-one years of age. 3 N. H. R., 472. Nor by being 
" given away," and not residing with her parents. 5 ditto, 
348. 

The presumption of law is that all persons over twenty- 
one years of age are emancipated, and all under that age 
are not emancipated, until the contrary is proved. 6 ditto, 
166. 

A child not emancipated follows the settlement of the 
father, whether residing in his family or not. 5 ditto, 348. 
But if more than twenty-one years of age the rule is other- 
wise. Ibid. He is presumed to be emancipated, although 
residing with his parents. 4 Mass. JR., 496. 

The marriage of the parents, and that the pauper is the 
issue of the marriage, must be proved ; but when the latter 
is proved, slight evidence of the former will be sufficient. 
8N. H.R., 534. 

A daughter under twenty-one years of age is emancipat- 
ed by marriage — 13 Mass R., 469; but a son under that 
age is not so emancipated. 15 ditto t 203. The reason is 
that the settlement is derived from the husband, (not the 
wife) and he must be of age to acquire one. 

If the father has a settlement in this state and dies, his 
legitimate minor children retain that settlement until they 
gain one for themselves, even if their mother marries again, 
or acquires a new settlement in any other w T ay. But if the 
father has no settlement in this state, the settlement of the 
legitimate minor children will follow that of the mother as 
often as she gains a new one by marriage or otherwise. 1 
Pick. R., 198; 4 Greenleaf R., 47; 7 ditto, 90. The 
rule as to illegitimate children is different. 3 N. H. R., 
316; 5 Greenleaf .R., 123. 

A person becoming non compos after coming of age, does 
not follow the settlement of his father. 3 Pick. R., 173. 
And he may gain a settlement by owning property to the 
amount required by law. 15 Mass. R., 237. 

It was held in Maine that if an alien married there, and 
then left the state and his family, without any intention of 
returning, but afterwards tried to induce his child to go and 
live with him out of the state, that the child was not eman- 
cipated so as to gain a settlement in his own right while a 
minor. 4 Greenleaf R., 292. 

The illegitimate non compos child of a non compos mother, 
in Maine, is considered as emancipated. 5 Grlf R., 123. 



SETTLEMENT OF PAUPERS. 189 

A minor emancipated may gain a settlement. 3 ditto, 
220. 

Third. Illegitimate children shall have the settlement of 
their mother at the time of their birth, if any she has within 
the state. 

The following rules and decisions apply to this head. 

Illegitimate children do not follow the settlement of their 
mother, but retain the settlement which their mother had 
at the time of their birth, until they gain a new one for 
themselves. 3 N. H. R., 316. 

The illegitimate non compos child of a non compos moth- 
er, in Maine, is considered as emancipated for all the pur- 
poses of the act concerning the settlement and support of 
the poor. 5 Grlf. R., 123. 

An illegitimate child when emancipated can gain a set- 
tlement, but not until emancipated from the control of the 
mother as a natural guardian. 1 Fairfield R. } 356. But 
living with the putative father, and his exclusive support 
and control of the child for sixteen years, does not emanci- 
pate, nor the marriage of the mother and her removal to 
another town, nor the mother becoming a pauper herself. 
Ibid. 

There is no distinction between legitimate and illegitimate 
minor children as to their power to acquire a settlement in 
their own right. 2 Fair. R., 458. See cases under the 
preceding head. 

The marriage of the parents of an illegitimate child sub- 
sequent to its birth will not render the child legitimate ; 
for all legal purposes, as its settlement, it is still a bastard. 
1 N. H. R., 261. But this does not apply to a child born 
during wedlock, though begotten before. 

Fourth. Any person of the age of twenty-one years, hav- 
ing real estate of the value of one hundred and fifty dollars, 
or personal estate of the value of two hundred and fifty dol- 
lars, in the town where he dwells and has his home, and pay- 
ing all taxes duly assessed on him and his estate for four 
years in succession, shall thereby gain a settlement in said 
town : 

The following decisions and rules apply to this head. 
The " real estate" must be " at least" an estate of freehold 



190 SETTLEMENT OF PAUPERS. 

(for life) either by lawful title or by disseizin. 1 iV T . 
H. R., 62. The freehold of a husband in the estate of his 
wife is sufficient. 4 Mass, R., 384. A right in equity to 
redeem real estate is " real estate" within this statute, but 
the equity must be worth $150.00. 2 N. H. R., 401. 
The interest of the pauper in the real estate, whatever it 
was, must have been of the value of $150.00. 8 ditto, 124. 

It is not necessary that the estate should be taxed " four 
years in succession," but only that all the taxes which are 
assessed upon it shall be paid. 3 N. H. R., 349. If a tax 
is abated no settlement is gained. 5 Mass. R., 430. Nor 
if the tax is not paid because the collector neglects to col- 
lect it and the person is able to pay. 20 Pick. R., 345. 

And it is necessary that the person should dwell and have 
his home in the town four years in succession, and have real 
or personal estate of the amount above specified during the 
whole of said four years. 3 N. H. R., 381. And the four 
years must all be subsequent to January 1, 1796. Sec. 3. 
I Pick. R., 154. But a temporary absence, without an in- 
tention to change his residence, will not prevent a settle- 
ment. 7 Mass. R,l. 

It is for the town setting up the residence and payment of 
taxes, to prove that the taxes have been paid. 10 Pick. R.> 
378. 

For the meaning of " dwells and has his home," see ch. 
9 ; also the cases cited under the sixth and eighth heads of 
this section. 

Fifth. Any person admitted an inhabitant by any town at 
any legal meeting, in the warrant for which an article for the 
purpose shall be inserted, or who shall be chosen and shall 
actually serve one year in the office of clerk, treasurer, se- 
lectman or overseer of the poor therein, shall thereby gain 
a settlement in such town. 

The following rules and decisions may be applicable. 

A person who was chosen to an office by the town, and 
accepted it, but before the expiration of the year for which 
he was chosen, removed to another town, was held not to 
have gained a settlement thereby in the town where he was 
so chosen. 2 N. H. R., 295. So if he was committed to 
prison within the year. 12 Mass. /?., 262. 

Such officer must be proved to have been legally chosen 
at a legal meeting of the town, and legally qualified. See 



SETTLEMENT OF PAUPERS. 191 

ch. 4. But the record of the choice of a person to an 
office, and proof of his service in said office for one year, is 
evidence from which a jury may infer that the meeting at 
which the officer was chosen was legally holden, after thirty- 
nine years. 9 JV. H. jR., 369. 

The year intended is the municipal year, or the year im- 
mediately following the election — 12 3Iass. JR., 262 ; or 
during the year succeeding the day on which his term of 
office commences, if this is subsequent to the election. Ibid. 

It is not necessary that the officer should be called on to 
perform any duty, but he must be in a situation to serve, or 
capable of serving during the whole year. 12 Mass. R., 
262. 

An occasional absence, however, or a disability to perform 
any particular act in his office, caused by sickness or other- 
wise, will not prevent a settlement — Ibid. ; but long con- 
tinued sickness might perhaps prevent. Ibid. 

Sixth. Any person dwelling and having his home in any 
unincorporated place at the time when the same shall be- 
come incorporated into a town, shall thereby gain a settle- 
ment therein. 

The following rules and decisions apply to this head. 

Places not incorporated are not liable for the support of 
paupers, and no person can gain a settlement in such place. 
But the act of incorporation gives to every person having a 
11 home" in such place at that time a settlement therein. 
4 N. H. R., 86. 

And his "home" maybe in such place, and he gain a 
settlement thereby, though absent from the place, if his ab- 
sence is only for a temporary purpose. 3 Grecnleaf R. t 
390. See ch. 9, as to what constitutes a "home." 

It is held in Maine that an alien gains no settlement by 
dwelling in a town at the time of its incorporation. 1 Green- 
leaf R., 196. 

Whoever removes into a place with the intention of re- 
maining there an indefinite time, thereby establishes his home 
in such place. 13 Maine R., 225. 

Seventh. If two or more towns shall be incorporated into 
one town, any person having his settlement in either of such 
towns shall have his settlement in the town so incorporated. 

This refers solely to the union of incorporated places or 



192 SETTLEMENT OF PAUPERS. 

" towns." If one of the places is unincorporated, the con- 
sequence, however, is the same under the sixth mode of gain- 
ing a settlement by incorporation. 

It is immaterial whether the pauper resides in either town 
at the time of the union or not ; if he has a settlement in 
either it is sufficient. 

Eighth. Upon the division of any town, any person hav- 
ing his settlement therein shall thereafter have his settlement 
in that town in which his last dwelling place shall have been. 

The following rules and decisions apply to this head. 

A female emancipated may have a " home" in a town so 
as to gain a settlement in this mode, by residing seven years. 
1 N. H. R., 194. Her home is where she labors. Ibid. 

By " dwelling place" may probably be understood " home" 

This head refers not only to the case where one town is 
divided into two towns, but also the case where a part of a 
town is set off to another town. 

A pauper, supported by a town which is divided, and re- 
siding in that part of it which is incorporated into a new 
town, gains no settlement in the new town ; he has no i( home" 
in such new town within the meaning of the statute, because 
he is a pauper and under the control of others. 3 N. H. R., 7. 

The pauper must have his settlement in the town at the 
time of the division ; but it is not material whether he 
then resides in the town or not. 19 Pick. R., 426 ; 3 
Greenleaf R., 390. 

Ninth. If the dwelling-house or home of any person re- 
siding but having no settlement in any town shall, by act of 
law, fall within the limits of any other town, such person 
shall acquire a settlement in such last named town, in the 
same time and manner as he would have done in the former 
town if no such change had taken place. 

The following rules and decisions apply to this head. 

The two preceding paragraphs refer to cases where the 
pauper has gained a settlement ; this paragraph refers to 
those cases where the settlement is not complete, but where 
the person is in the way of gaining one ; and provides that the 
change of limits or name of the town in which he lives shall 
not prevent his gaining a settlement in the new town into 
which the law transfers him. 



SETTLEMENT OF PAUPERS. 193 

The legislature, however, may control or change this rule, 
by different provisions in the act altering the limits of the 
town, and may leave the settlement of paupers as they think 
proper. 

Tenth. Any person of the age of twenty-one years, who 
shall have resided in any town in this state, and, being tax- 
ed for his poll seven years in succession, shall have paid all 
taxes legally assessed on his poll and estate during said 
term, shall thereby gain a settlement in such town. R. S., 
ch. 65, sec. 1. 

The following rules and decisions apply to this head. 

To gain a settlement in this mode the person must be 
11 taxed for his poll seven years in succession" and pay all 
the taxes on his poll and estate. If the selectmen omit 
to tax him a single year for his poll, he gains no settle- 
ment. 3 N. H. R., 203 ; 7 Greenleaf R., 363. The ob- 
ject is to give the town an opportunity to prevent a settle- 
ment being gained, and the selectmen may omit to tax a 
man for his poll for this purpose. 4 N. H. JR., 48. Hav- 
ing an estate of less amount than the law requires, and pay- 
ing taxes on it seven years, is not sufficient. Ibid. 

By the words, " resided in any town" is probably under- 
stood, dwelt and had his home. The seven years' residence 
must be uninterrupted ; any absence, however short, with 
the intention of changing the residence, will prevent the 
gaining a settlement. 11 Mass. R., 394. And so if dur- 
ing that time the person is supported as a pauper, and the 
expenses thereof are paid by the town in which his settlement 
then was. 13 Mass. R., 460. So if committed to jail, 
and relieved as a pauper by the jailer. 12 Pick. R., 1. 

But if a tax is abated, he will not gain a settlement. 
5 Mass. R., 430. Nor if it is not collected by reason of 
the neglect of the collector. 20 Pick. R., 345 ; nor if the 
tax is discharged by vote of the town. 19 Pick. R., 389. 

A settlement will be gained by such residence and taxa- 
tion, although the wife of the person has been during the 
seven years supported as a pauper in another town, if it was 
done without his knowledge or request, or any demand and 
refusal of payment of such expenses by him. 19 Pick. R., 
480 ; or though his wife and children have resided during 
the seven years in another state, and he has occasionally vis- 
ited them there. 13 Mass. R., 501. 



194 SETTLEMENT OF PAUPERS. 

2. No person shall gain a settlement by birth in any town 
in which neither of his parents then has a settlement. R. S., 
ch. 65, sec. 2. 

3. No town shall be liable for the support of any person 
unless he, or the person under whom he derives his settle- 
ment, shall have gained a settlement therein under some law 
passed since the thirty-first day of December, A. D., 1795. 
Ibid., sec. 3. 

The laws passed since Dec. 31, 1795, are the acts of 
January 1, 1796, December 25, 1816, December 16, 1828, 
and the Revised Statutes. The warning out laws are repeal- 
ed, and all settlements gained under them ; the only ques- 
tion is, whether the pauper or the person under whom he 
derives his settlement has gained a settlement under one of 
these four statutes. 

4. Every settlement shall continue until a new settlement 
is gained in this state, and upon gaining such new settle- 
ment any former settlement shall be lost. Ibid., sec. 4. 

When a person has once gained a settlement in this state 
it is not lost by gaining another settlement in another state. 
2 N. H. R., 131. And the right of settlement may be 
transmitted to his children born in such other state, so as to 
avail them on their return within this state, where a settle- 
ment had been previously here gained by the father. 8 
N. H. R., 532. But is such right transmitted to the wife, 
married to him while residing in such other state, and not 
returning to this state during his life? 

No person can have two settlements in this state at the 
same time. 1 Pick. JR., 153. 

5. A general law, whose operations may change the exist- 
ing settlements of paupers, is not unconstitutional. 2 N. 
H. R., 102. 

6. The act of January 1, 1796, is as follows. It is the 
same, substantially, as sections 1, 2 and 4 of this chapter, 
except the fifth mode of gaining a settlement. 

" Legal settlements in any town or district within this state 
shall be hereafter gained, so as to oblige such town or dis- 
trict to support the persons gaining the same, if they be- 
come poor and unable to support themselves, by the ways 
and means following, and not otherwise : 

I. A married woman shall have the settlement of her 

husband, if any he have within this state ; but if other- 



SETTLEMENT OF PAUPERS. 195 

wise, her own, if any she had at the time of marriage, 
shall not be lost or suspended by such marriage, unless 
she shall have gained a legal settlement elsewhere ; but 
in case no such settlement shall be by her obtained after 
such marriage ; and in case she shall become poor and 
be supported at the cost and charge of the town or district 
of her settlement at the time of such marriage, the hus- 
band being poor and needing relief, he shall be provided 
for and supported in the same town or district, but at the 
charge of the state. 

II. Legitimate children shall have the settlement of 
their father, if he shall have any such within this state, 
until they gain a settlement of their own ; but if he shall 
have none, they shall have the settlement of their mother, 
if she shall have any. 

III. Illegitimate children shall have the settlement of 
their mother at the time of their birth, if she shall have 
any within this state ; but neither legitimate nor illegiti- 
mate children shall gain a settlement by birth in any place 
where they may be born, if neither of their parents shall 
then have a settlement there. 

IV. Any person, of twenty-one years of age and up- 
wards, having real estate of the value of one hundred and 
fifty dollars, or personal estate of the value of two hun- 
dred and fifty dollars, in the town or district where he 
dwells and has his home, and shall for the term of four 
years pay all taxes duly assessed on his poll and the es- 
tate aforesaid, shall thereby gain a settlement in such town 
or district. 

V. Any person who shall be admitted an inhabitant by 
any town or district at a legal meeting, in the warrant for 
which an article shall be inserted for that purpose, or shall 
be chosen and actually serve one year in the office of clerk, 
treasurer, selectman, overseer of the poor, assessor, con- 
stable, or other town officer liable to be fined for not ac- 
cepting his office, being duly elected thereto in any town 
or district within this state, shall thereby gain a settlement 
in said town or district. 

VI. All persons dwelling and having their homes in any 
unincorporated place in this state, at the time when the 
same shall be incorporated into a town or district, shall 
thereby gain a settlement therein. 

VII. Upon division of towns or districts, every person 



196 SETTLEMENT OF PAUPERS. 

having a settlement in either of them, but being removed 
therefrom at the time of such division, and not having 
gained a settlement elsewhere, shall have his settlement in 
that town or district wherein his former dwelling place or 
home shall be upon such division. And when any new 
town or district shall be incorporated, composed of one or 
more old incorporated towns or districts, all persons set- 
tled in the town or towns, district or districts, of which 
such new town or district is composed, and who shall ac- 
tually dwell and have their homes within the limits of 
such new town or district at the time of its incorporation, 
shall thereby gain a settlement in such new town or district. 

Provided, nevertheless, That no person residing in 
that part of any town or district, which upon such divis- 
ion shall be incorporated into a new town or district, hav- 
ing then no settlement therein, shall gain any by force of 
such incorporation ; nor shall such incorporation prevent 
his gaining a settlement therein, within the time and by 
the means by which he would have gained a settlement 
there, if no such division had been made. 

VIII. Any person, of the age of twenty-one years, who 
shall hereafter reside in any town or district within this 
state, and being taxed for his poll for the term of seven 
years, shall pay all taxes legally assessed on his poll and 
estate during the said term, shall be an inhabitant in said 
town or district. 

And every legal settlement heretofore gained, or which 
shall be gained by force of this act, shall continue until 
lost or defeated by gaining a new one ; and upon gaining 
a new settlement, all former settlements shall be lost." 

The officers mentioned in paragraph 5, " liable to be fin- 
ed for not accepting office" besides those specified, were 
" firewards, surveyors of highways, tythingmen, fence-view- 
ers, clerk of the market, sealers of leather, sealers of weights 
and measures, hogreeves, corders of wood, surveyors of lum- 
ber, cullers of staves, field-drivers, and every other town offi- 
cer that the law directs, or that may be necessary for manag- 
ing the affairs of the town." 

Paragraph 5 of that act continued in force until Decem- 
ber 25, 1816, when it was repealed, and since that time 
a settlement by being chosen into office could be gained only 
by holding the offices of selectman, overseer of the poor, 



SUPPORT AND DISPOSAL OF PAUPERS. 



197 



town-clerk or treasurer, as is now provided. The rest of 
the act of January 1, 1796, remained in force and unaltered. 
" District" in that act means an incorporated -place. 4 
N. H. R., 89. 

7. The act of December 16, 1828, is almost literally the 
same as that of January 1, 1796. 

8. By the words, " any person," in this chapter, are meant 
such persons as are legally capable of gaining a settlement 
only. 1 Greenleaf 22., 93. Persons non compos are not ca- 
pable of gaining a settlement by any mode requiring an act 
of volition on their part, but may gain a settlement in any 
mode which requires no such act. 3 Greenleaf R., 220. 
Aliens cannot acquire a settlement in Massachusetts. 16 
Mass. R., 230. But incipient insanity does not incapacitate a 
person for gaining a settlement. 3 Pick. R., 173. 

9. When the settlement of a pauper is once determined 
by a judgment of the court, in a suit between two towns, it 
will be conclusive as between those towns. 4 3Iass. R., 
180, 273. 



CHAPTER 44 



OF THE SUPPORT AND DISPOSAL OF PAUPERS. 



1. Poor farm may be purchased. 

2. Officers and regulations. 

3. Paupers to be supported. 

4. Paupers, how bound out. 

5. Children, how bound out. 

6. Contracts, how to be made. 

7. Paupers to be buried, how. 

8. Relations, when liable. 

9. Expenses recovered, when. 

10. Notice to be given, how. 

11. Service of notice, how made. 

12. Notice returned to court. 

13. Notice good, how long. 

14. Limitation of actions. 

15. Actions transferred, when. 



16. Duties of selectmen and 
towns. 

17. Liability of towns. 

18. Notice, what is sufficient. 

19. Town liable on contract. 

20. Authority of selectmen. 

21. Liability of parents. 

22. Liability of relations. 

23. Who is a pauper. 

24. No recovery back, when. 

25. Form of indenture in sec. 4. 

26. Form of indenture in sec. 5. 

27. Form of notice in see. 10. 

28. Power of selectmen to bind 
out. 



1. Any town may purchase or hold lands, and may 



198 OF THE SUPPORT AND 

purchase or erect all buildings and furnish all means which 
may be necessary for the accommodation, support and em- 
ployment of the poor within said town, and at any legal 
meeting may raise so much money as may be necessary for 
said purposes, and for managing and keeping such property 
in repair. R. S., ch. 66, sec. 2. 

Unincorporated places have no authority to raise money 
for the support of paupers. 4 N. II. R., 93. 

2. The town may appoint all necessary officers for the 
management of such property, and establish necessary by- 
laws and regulations for the government of its inmates, pro- 
vided that no punishment shall exceed that allowed in the 
house of correction of said town. Ibid., sec. 3. 

3. When any person in any town shall be poor and unable 
to support himself, he shall be relieved and maintained by 
the overseers of the poor of such town, whether he has a 
settlement in such town or otherwise. Ibid., sec. 1. If no 
overseers of the poor are chosen by the town, the selectmen 
are required to act in that capacity. See ch. 4, sec. 4. For 
the provisions relative to the insane, see ch. 48. 

4. The overseers of the poor in any town may, by written 
contract, bind out to labor for a term not exceeding one 
year, or employ in their work-house, every person residing 
in such town who lives idly and pursues no lawful business, 
and who is poor and stands in need of relief, or whose fam- 
ily standing in need of relief is supported by such town, and 
shall take the wages and appropriate the same to the main- 
tenance of such person, his family or children. Ibid., sec. 4, 

5. Said overseers may set to work in the work-house or 
elsewhere, or bind out as apprentices, all children residing 
in their respective towns who are not employed in some law- 
ful business, and whose parents are unable or neglect to 
maintain them. The males may be bound out until they 
arrive at the age of twenty-one years, and the females until 
they arrive at the age of eighteen years. Ibid., sec. 5. 

6. Such contract shall be in writing, shall be made equi- 
tably, and as much as may be for the interests of the persons 
bound out, and shall provide that they shall be instructed 
to read, write and cipher, and to do such work and business 
as is suitable to their condition. The overseers shall in- 
quire into the usage of all persons so bound out, shall see 
that said contract is fulfilled, and that all wrongs or inju- 
ries are redressed, and the rights and obligations of such 



DISPOSAL OF PAUPERS. 199 

master and apprentice shall be the same as in the case of 
other apprentices. Ibid., sec. 6. 

For the powers and duties of masters and apprentices, and 
of the overseers of the poor in such cases, and forms of pro- 
ceedings, see ch. 48. 

7. If any pauper shall die in any town in this state, hav- 
ing a settlement in such town or otherwise, the overseers of 
the poor shall cause such person to be decently buried at the 
expense of the town. Ibid., sec. 7. 

8. The relations of any poor person in the line of father or 
grandfather, mother or grandmother, children or grand- 
children of sufficient ability, shall be liable to maintain such 
person when standing in need of relief. If such person has 
no such relations of sufficient ability, the town wherein such 
person has a legal settlement shall be liable for his sup- 
port. Ibid., sec. 8. 

9. If any town in this state shall expend any sum for the 
support or burial as aforesaid of any poor person having a 
settlement in some other town in this state, or having any 
relation of sufficient, ability, such sum may be recovered of 
the town or person so chargeable by law with the support 
of such poor person. Ibid., sec. 9. 

If a town claims that a certain tract of territory belongs 
to it, such town is liable to support the inhabitants of such 
tract who may become paupers, whether the tract really be- 
longs to such town or not. 2 N. H. R., 242. 

10. No action shall be sustained against any town or person 
chargeable as aforesaid, unless a notice in writing, signed by 
the overseers of the poor, stating the sums so expended, shall 
first have been given to such town or person. Ibid., sec. 10. 

No action can be maintained by or against an unincorpo- 
rated place for the support of paupers. 4 N. II. R., 93. 

1 1 . Such notice shall be served upon such town by the 
sheriff or his deputy, by leaving an attested copy thereof and 
of his return thereon, with one at least of the selectmen or 
overseers of the poor, and with the clerk of such town ; and 
upon any person chargeable as aforesaid, by giving him in 
hand, or leaving at his usual place of abode, a like copy. 
Ibid., sec. 11. 

12. The officer making such service shall, within twenty 
days thereafter, make a return of the original notice, with 
his doings therein, to the clerk of the court of common pleas 
in the county in which the town or person chargeable may 



200 OF THE SUPPORT AND 

be, and shall receive the same fees for his travel and service 
as by law are allowed for serving writs. Ibid., sec. 12. 

13. Such notice shall be sufficient for all sums so ex- 
pended within ninety days previous to such service, and for 
any sums so expended within one year thereafter. Ibid., 
sec. 13. 

14. No action aforesaid shall be sustained unless com- 
menced within three years from the time of the service of 
such notice upon the town or person chargeable, nor for 
any sum that may have been expended more than ninety 
days previous to such notice. Ibid., sec. 14. 

15. When any county, in which any action for the sup- 
port of a pauper is pending, may eventually be liable for the 
support of such pauper under any law of this state, the court 
shall, on motion, transfer such action to an adjoining county 
for adjudication. Ibid., sec. 15. 

16. A town in which a jail is situate is bound to provide 
for the support of a pauper confined in such jail on civil 
process, whether such prisoner has a legal settlement in 
such town or not. 9 W. H. R., 107 ; 5 Mass. R., 244,.328. 

If the person applying for relief is " poor and unable to 
support himself," and " stands in need of relief," the se- 
lectmen are bound to relieve him ; if they refuse to do so 
on application, they may be liable to an indictment. The 
chief question is as to the necessity of the person making 
application ; not as to the liability of other persons for his 
support. 

Application for relief should be made by the pauper, 
either personally or by some person authorized by him to 
apply, but need not be in writing. 

When the question as to the settlement of a pauper arises, 
the selectmen should first ascertain all the facts in the case, 
and what the law was at the time when the settlement is 
alleged to have been gained. By the law and the facts, as 
they then existed, the question of liability is to be deter- 
mined. After gaining all the information in their power, 
and taking such legal advice as they think expedient, the 
selectmen must act according to their best judgment and 
as if the case was their own. The support of a family of 
paupers is no small matter, however, and great care and 
deliberation should be used ; but lawsuits should be avoid- 
ed if practicable. 

The manner of affording relief is of consequence. It 



DISPOSAL OF PAUPERS. 201 

should be so afforded as to relieve want, but not to encour- 
age idleness and profligacy. Where the number of paupers 
is sufficient, a poor farm is the most economical and useful 
mode. In such case it is better generally to furnish assist- 
ance at the poor farm. But when the amount of assistance 
required is small, or in special cases, as of sickness, where 
a removal would be inexpedient or dangerous, relief should 
be furnished at the home of the applicant. Distress must 
not go unrelieved, whatever may have been its cause ; but 
the object of the law is to encourage the honest and deserv- 
ing pauper, and to discourage idleness and vice. This rule 
should guide selectmen in the discharge of their duties. 

17. " There is no moral obligation which binds a town to 
support its poor inhabitants. Our whole system of poor 
laws is founded upon the provisions of our statutes. No 
action can be maintained against any town for the support 
of a pauper unless it be given by statute. But we have no 
statute which gives an action to an individual against a 
town for the support of a pauper. Persons standing in need 
of relief are to be supported by the overseers of the poor 
in the town where they happen to be ; and in case they are 
not settled there, an action is given to such town against 
the town in which they have a settlement." If the over- 
seers employ an individual to take care of the pauper, the 
town is liable. 1 N. H. JR., 52. In order to charge a 
town the statute must be strictly pursued. 3 ditto, 81. 

A pauper for whose support provision was made in the 
town of W., in which she had a settlement, went into the 
adjoining town of N. S., and there expenses were incurred 
for her support, although the pauper herself, the person with 
whom she resided in N. S., and the town all knew that a 
place was provided for her in W. to which she was able to 
walk without difficulty; held that N. S. could not recover 
of W. for those expenses. 2 Pick. JR., 341. 

Persons confined in jail on civil process may be paupers, 
and the town in which their settlement is, liable for their 
support. 9 N. H. R., 107. So if confined in a house of 
correction, as idle and disorderly persons. 12 Mass. R., 355. 

No action lies in favor of an individual against a town 
for the support of a pauper, unless upon an agreement made 
by the town or the selectmen therefor. 6 Mass. jR.,501. 

Towns are liable for reasonable expenses only ; not al- 
ways for the sums paid, if extravagant. 15 Mass. R.,248. 



202 OF THE SUPPORT AND 

A town may be liable though notice has been given to 
another town, and the sums stated in the notice recovered 
of such town. 17 Mass. R., 432. 

A charge for the services of the overseers of the poor 
cannot be recovered. 8 N. H. R., 144. 

It is not necessary to prove every item set out in the no- 
tice ; but if a notice sets forth sums which were never paid 
or agreed to be paid, or sums larger than the true sums, the 
selectmen knowing the facts to be so, nothing can be recov- 
ered on such items. 8 ditto, 142. 

If a town, supposing itself liable for the support of a pau- 
per, pays certain expenses incurred therefor, and afterwards 
discovers that another town is liable, the amount so paid 
cannot be recovered back of such other town. ] 2 Pick. R.,1. 

18. When a town relieves a pauper belonging to another 
town, in order to make the town to which the pauper be- 
longs liable, notice of the sums expended must be given 
within ninety days from the time when the relief mentioned 
in the notice was afforded. 2 N. H. R., 470. The ninety 
days run from the time the relief is furnished, and not from 
the time it is paid for. Ibid. If any part of the amount 
claimed in such notice was furnished more than ninety days 
before the service of the notice, it may destroy the whole 
claim. Ibid. It is of no consequence whether the sup- 
plies furnished have been paid for by the town before the 
notice is given, or not. 3 ditto, 291 ; 9 ditto, 369. 

The attorney for a defendant town may lawfully make an 
agreement to waive any defect of notice or service ; and if 
made in writing in court in term time (or dated as if made 
in term time, thus : Court of Common Picas : — Rocking- 
ham ss., February Term, 1843, Town of A. vs. Town of B.) 
it will be enforced by the court. 2 ditto, 520. So also if 
made in the same manner by selectmen. 3 ditto, 38. But 
if made by the selectmen and not dated as of the term as 
aforesaid, the action being then in court, the agreement 
will not be binding on the town, and the court cannot en- 
force it. 2 ditto, 131 ; 3 ditto, 39. 

A notice that $35.87 had been expended for the support 
of "Sally and Esther Benson; also the daughter of Sally 
Benson, paupers," is not sufficient, and the town cannot re- 
cover. The pauper must be clearly pointed out in the no- 
tice. " The daughter of Sally Benson," is not enough, 
for she may have several daughters. " The oldest daughter," 






DISPOSAL OF PAUPERS. 203 

might be sufficient. It is necessary, too, that the sums 
expended for each should be stated, and this renders the 
notice bad. 2 ditto, 530. 

But if the relief is furnished to a person having a wife 
and minor children, living in one family, the notice need 
not specify the sum expended for each member of the fam- 
ily, though each member must be named expressly in the 
notice. 8 ditto, 142. 

Notice directed " To the selectmen and town-clerk of the 
town of C," is not sufficient ; it must be directed " To the 
town of C" If not so directed the notice is bad. 3 ditto, 81. 

Leaving an attested copy of the notice at the usual place 
of abode of one selectman and the town-clerk, is a suffi- 
cient service. 5 ditto, 348. The notice must be returned 
to the court of common pleas within twenty days, or it will 
not be of any avail. 3 ditto, 277. 

A notice signed by a majority of the selectmen is suffi- 
cient. 6 ditto, 306. 

And notice must be given seasonably of all sums expend- 
ed for the support of the pauper, as no action without this 
will lie to recover them. Notice of other expenses previ- 
ously incurred in the support of such pauper is not suffi. 
cient — 7 ditto, 251 ; but is now good for one year, after no- 
tice. Sec. 13, of this chapter. 

A husband and father may be liable for the support of 
his wife and children by a town in some cases without no- 
tice. 7 ditto, 571. 

And notice must be given in good faith ; if it contains 
charges for sums not expended, or overcharges, nothing can 
be recovered for the items in which they are included. It 
is fraudulent. 8 ditto, 145. 

Notice that " S. and his family," or that " S. and several 
of his children" are chargeable, is good astoS., (in Maine) 
but not good as to his family or children. 1 Grlf R., 329. 
So also notice that S. and his family are chargeable, the 
only subject of expense being one of his sons who was al- 
luded to in the notice, but not named by his name, was 
held to be insufficient. 5 Grlf. R., 430. 

A pauper, whose name was Patty Baxter, was known by 
the name of Patty LaBarron. A notice in which she was 
called Patty Labern was held to be insufficient. 5 Pick. 
R., 190. 

A notice that " £. S. and her three children" were 



204 



OF THE SUPPORT AND 



chargeable, is insufficient as to the children, but sufficient 
as to her, if the expenses are stated separately. 4 Pick. 
JR., 358. The names of the children should be stated, so 
that they may be known. 

19. The selectmen were held not to be liable upon the 
following agreement, as they were acting in behalf of the 
town, but the town would be liable thereon : 

" The subscribers, in behalf of the town, hereby acknowl- 
edge notice to have been given us by the selectmen of the 
town of Hanover, in relation to the support of the family of 
John Kimball, for which said selectmen of Hanover claim 
payment of us, and we engage to take no advantage and will 
not hold them to furnish evidence of said notice having been 
given in the form prescribed by law. This acknowledge- 
ment extends to all claims for said support from the 8th of 
March last past. 

Samuel Eaton, ) Selectmen 
Abraji Morrill, ) of Weare. 

August 30, 1816." 

The town of Weare did hold the plaintiff " to furnish ev- 
idence" of a legal notice, and obtained a verdict in conse- 
quence ; but it was held, in a suit on the above agreement, 
that the town was liable for damages for its violation though 
the selectmen were not. 3 N. H. R., 38. 

20. One selectman may furnish proper supplies to a pau- 
per actually standing in need of relief, and residing in the 
town, without the actual assent of the others ; their assent 
may be presumed, because it is their duty to assent. 3 ditto, 
291. A majority is sufficient in any case. 6 ditto, 306. 

Selectmen may bind their town by a note for the support 
of a pauper legally chargeable upon such town, although 
notice has not been served, if the time of such service has 
not expired — 7 ditto, 298 ; or may waive notice or any in- 
formality. 3 ditto, 38. But a note or agreement signed 
by one selectman only, " for the selectmen," is not the con- 
tract of the town — 7 ditto, 299 ; nor will it be permitted 
to be shown that the other selectmen authorized it to be so 
signed. Ibid. 

The selectmen may make a contract for the support of 
any pauper, and agree upon a price and time of payment, 
and the town will be bound. IN. H. R., 301. 

And the selectmen may agree with the person then support- 
ing a pauper, for future support, and give notice to the town 



DISPOSAL OF PAUPERS. 205 

or person chargeable, and recover the expenses of such sup- 
port. 17 Pick. R., 68. But the selectmen cannot carry a 
pauper out of the state (or out of the town to which he is 
chargeable, except to the Insane Asylum) to be there sup- 
ported against his will. 17 Pick. R., 68. 

If the pauper resides in the town in which he has a set- 
tlement, and stands in need of relief, one selectman may 
supply or order a supply for his need, and the assent of the 
other selectmen will be presumed. But if the pauper re- 
sides in a different town, one selectman cannot bind the town 
for supplies furnished ; a majority must act. If the promise 
or agreement made by such selectman contains proper words 
to bind himself, instead of the town, he may be personally 
liable. 9 JY. H. R., 55. 

21. A parent is not bound by law to support the illegita- 
mate offspring of his children. 4 ditto, 86. But a parent 
is bound to support his wife, and his children who are not 
emancipated, as long as he has any means whatever to do 
it. They cannot become a charge upon the town as pau- 
pers until he is a pauper. 4 ditto, 96. The claim of un- 
emancipated children to a support from their parents stands 
on very different ground, from the claim of any other de- 
scription of persons to support from their kindred. 4 ditto, 
95; 161. 

The obligation to support a wife and children exists at 
common law, and does not depend on the statute. The 
husband and father is liable without notice for necessaries, 
but not for the wife if she has deserted him. 7 ditto, 571. 
The common law obligation is not taken away by the stat- 
ute, but a new obligation is imposed. 7 ditto, 577. 

22. What is " sufficient ability" to support poor relations, 
within the meaning of section 8, is a question of much prac- 
tical difficulty. The rule in relation to the liability of pa- 
rents is laid down in sec. 21. The rule in other cases is 
different, and the following points have been decided : 

The son of a pauper owned a farm worth $2,000, and 
was in debt $1,400, and of very infirm health. The court 
instructed the jury, that if they were satisfied that the son 
could not from the produce of his farm, with his own labor 
and the assistance of his family, maintain himself, his wife, 
children and parents, and pay the interest of his debts annu- 
ally, he was not of " sufficient ability." The jury decided 

R 



206 OP THE SUPPORT AND 

that he was not of u sufficient ability" to support his mother. 
4 N. H. R., 96. 

The son of a pauper owned real estate worth $1,800, and 
personal estate worth $500 ; and his debts amounted to 
$700. He had four children, and his health was feeble. 
The court gave to the jury the same directions as in the 
preceding case, and they decided that he was not "of suffi- 
cient ability" to support his father. 4 ditto, 96, 158. He 
should not himself become poorer every year, in his effort 
to support his parents, or he may also become a pauper, and 
this is not the intent of the law. 4 ditto, 163. 

" A relation who, without breaking up his own family, 
without a change of his professional pursuits or of his accus- 
tomed style of living, and without any hazard to the proba- 
ble maintenance for life of himself and dependents, can 
contribute to a pauper's relief, is certainly a relative of suf- 
ficient ability. It matters not whether the ability be deriv- 
ed from a surplus of annual income, or of fixed capital ei- 
ther personal or real. On the other hand, a relative who 
cannot thus contribute without incurring some of those sac- 
rifices and dangers, is certainly destitute of sufficient abili- 
ty." Walpole v. Marlow: Cheshire, May Term, 1821. 

23. It is not necessary, in order to entitle a person to re- 
lief as a pauper, that he should be altogether destitute of 
property. 8 N.. H. R., 305. But he is to be deemed a pauper 
who cannot relieve his immediate wants without disposing 
of property which is essential, and which, if parted with, 
must be immediately replaced to enable him to live. Ibid. 

A prisoner confined in jail for debt may be a pauper, and 
if poor and standing in need of relief the selectmen of the 
town in which the jail is situate must relieve him, and may 
recover of the town in which he has his settlement. 9 
ditto, 107. 

If a person who has bodily health and strength, but small 
mental capacity, and who has been supported many years as 
a pauper, at last finds an employer who will take care of 
him for his labor, and wishes to stay with such employer, 
he is not to be considered as a pauper any longer. 14 Pick. 
JR., 341. 

24. The town cannot recover of a pauper the sums ex- 
pended for his relief, if such pauper should afterwards 



DISPOSAL OF PAUPERS. 207 

acquire property. 9 N. H. R., 195. It is a charity and a 
gift to relieve present distress. Ibid. 

25. The form of an indenture, under sec. 4, may be : 

This indenture, made by and between A. B., C. D. and 
E. F., overseers of the poor in the town of H., in the county 
of C, and state of New-Hampshire, of the one part, and 
T. L. M., of said H., of the other part, Witnesseth : 

That the said overseers, by the authority in them vested 
by law, have bound and do hereby bind out to labor to the 
said T. L. M., for the space of one year from the date hereof, 
A. J., a person residing in said town of H., who lives idly 
and pursues no lawful business, and who is poor and stands 
in need of relief, during which time the said A. J. shall 
faithfully serve the said T. L. M. in all things whereto he 
may lawfully command him. 

And the said T. L. M. covenants on his part that he will 
pay to the said overseers, for the services of the said A. J., 
for said term, the sum of dollars, to be by them 

appropriated to the maintenance of the said A. J. 

In witness whereof the said parties have hereunto set 
their hands and seals, this first day of April, in the year 
eighteen hundred and forty-three. 

Signed, sealed and delivered A.B.I Overseers (seal.) 

in presence of C. D. > of the Poor (seal) 

E. F. j in H . (seal) 

T. L. M. (seal.) 

The above form relates to a person having no family. If 
the person bound out has a family, the words, " who lives 
idly and pursues no lawful business, and who is poor and 
stands in need of relief," should be omitted, and the words 
— " whose family, standing in need of relief is supported 
by such town" inserted instead. Also, after the w T ords, 
"maintenance of the said A. J.," add — and his family. 

It is not necessary that the person so bound should have 
a settlement in the town, but merely that he should reside 
in the town, and he or his family be relieved as paupers. 
The overseers must state the reason of the binding out, in 
the indenture ; and they have no authority to bind out un- 
less the person lives idly, pursues no lawful business, is poor 
and stands in need of relief or unless his family, standing 
in need of relief is supported by the town. 



208 OF THE SUPPORT AND 

Two copies of the indenture should be made and signed, 
one for the use of the town and the other for the use of the 
other party. 

26. The form of an indenture, under sec. 5, may be : 
This indenture, made by and between A. B., C. D. and 

E. F., overseers of the poor of the town of IL, in the coun- 
ty of C, and state of New-Hampshire, of the one part, and 
T. L. M., of said H., of the other part, Witnesseth : 

That the said overseers, by the authority in them vested 
by law, have bound and do hereby bind out L. G., (a minor 
child of M. G.,) a person residing in said town of H., who 
is not employed in any lawful business, and whose pa- 
rents are unable or neglect to maintain him, as an appren- 
tice unto the said T. L. M., to learn the business, art or trade 

of a , and to serve the said T. L. M. faithfully from 

the date hereof until the sixth day of August, in the year 
eighteen hundred and fifty-four, when the said minor will be 
of the age of twenty-one years. 

And the said T. L. M. on his part covenants that he will 
teach said apprentice, or cause him to be faithfully taught, 
in said business, trade or art, and will provide for him suit- 
able board, lodging, clothing, nursing, attendance and other 
necessaries for his comfortable support in sickness and in 
health ; and that he will cause said minor to be instructed 
to read, write and cipher. 

(Here insert any other provisions as agreed upon.) 

In witness whereof the said parties have hereunto set 
their hands and seals, this first day of April, in the year 
eighteen hundred forty-three. 

Signed, sealed and delivered A. B. \ Overseers (seal) 
in presence of C. D. > of the Poor (seal.) 

E. F. j in H . (seal) 

T. L. M. (seal) 

Before the Revised Statutes it was necessary, in many 
cases, that the minors bound out should be chargeable to 
the town ; it is now only necessary that they should reside 
in the town, and not be employed in some lawful business, 
and that their parents should be unable or neglect to main- 
tain them. 

27. The form of the notice in sec. 10 may be : 






DISPOSAL OF PAUPERS. 209 

To the town of Lancaster, in the County of Coos and State 
of New- Hampshire. 

You are hereby notified that on the tenth day of Septem- 
ber, 1843, John Smith, Jane Smith, wife of said John, 
and James Smith, Peter Smith and Sally Smith, minor chil- 
dren of said John Smith, then and ever since persons poor 
and unable to support themselves, and having their settle- 
ment in said town of Lancaster, were relieved and have ever 
since been supported by the town of Peterborough, in the 
county of Hillsborough, in said state ; and the sums expend- 
ed by said Peterborough for the relief and maintenance of 
the said John Smith, his wife and children above named, 
since said tenth day of September, up to December 3, 1843, 
are as follows : 

For board of family 12 weeks, at $4.50 

per week, $54.00 

Paid Dr. W. C, for attending Jane Smith, - 8.00 
Paid Nancy Morse, for nursing Mrs. Smith 

two weeks, _____ 2.00 
Paid board of Nancy Morse, while nursing, - 3.00 
For 10 yards of calico for Mrs. Smith and 

Sally Smith, 1.25 

For four pairs of feeting for the family, - 1.00 
For one coat for John Smith, - - - 5.00 



$74.25. 



A. B. \ Overseers of the Poor 
C. D. \ in 

E. F. ) Peterborough. 

Peterborough, December 3, 1843. 

The notice should be signed by the overseers of the poor, 
if there are any chosen by the town ; if not, it should be 
signed by the selectmen as overseers of the poor, and not as 
selectmen. The notice is given by them acting in the office 
of overseers of the poor, and not acting as selectmen. 

28. The overseers are not personally liable on the indent- 
ures of an apprentice under this chapter, or under chapter 
48. If the apprentice disobeys, or steals, or becomes sick, 
the master must pursue the remedy given by the statute by 
a complaint ; but neither party can put an end to the indent- 
ures without the consent of the other, except in such. 



210 



PAUPERS NOT CHARGEABLE TO 



manner. 2 Pick. R., 457. Before the Revised Statutes the 
overseers were not authorized to bind out any person, unless 
" chargeable to such town;" 4 N. H. R., 139 ; but these 
words are now omitted, and the word " residing" used 
instead. 

" The power of taking children from their parents and 
families and homes, and binding them to strangers as ser- 
vants, which is here (sections 4 and 5,) conferred upon over- 
seers, is a high and arbitrary, if not a dangerous power ; 
and one which should only be exercised in cases of clear 
necessity, and where all the circumstances concur which 
justify and require so extraordinary an interposition in the 
domestic relations of private families. Nothing is to be 
presumed in aid of it ; but every thing which is required for 
its support must be shewn affirmatively." 19 Pick. R. t 
360. In such an enquiry it would be highly proper to no- 
tify the parent, and give him an opportunity to be heard on 
a question of so much interest to him ; but the statute does 
not expressly require it. Ibid. 



CHAPTER 45. 

OF PAUPERS NOT CHARGEABLE TO ANY TOWN OR 
PERSON IN THE STATE. 



1. County paupers,who are such. 

2. County poor farm bought, 
how. 

3. County paupers bound out, 
how. 

4. County liable to support, when. 

5. Bringing pauper into state, 
penalty. 

6. Master of vessel to give bond. 



7. Master of vessel liable, when. 

8. Suit on such bond regulated. 

9. Bringing pauper into county, 
penalty. 

1 0. Pauper may be returned, how. 

11. Form of indenture in sec. 3. 

12. Form of bond in sec. 6. 

13. Form of pauper account. 

14. Insane county paupers. 



1. When any poor person, for whose support no person 
or town in this state is chargeable, shall be relieved or 



ANY TOWN OR PERSON. 211 

buried at the expense of any town, the overseers of the poor, 
within one year thereafter, or in case a suit therefor has, be- 
fore the termination of said year, been commenced against 
any town or person, within six months after the termination 
thereof, may present an account of all moneys so expended, 
to the court of common pleas of the county in which such 
town is, with proper vouchers, and said court shall allow 
such sum as they shall think reasonable, to be paid out of 
the county treasury. R. S., ch. 67, sec. I. 

2. The court of common pleas in any county, upon the 
recommendation of a majority of the representatives to the 
legislature from the several towns composing said county, 
may provide, at the expense of such county, all such lands, 
buildings and articles as may be necessary for the accom- 
modation, support and employment of the poor who may be 
chargeable to such county, and may appoint suitable officers 
for their management, and establish necessary rules and 
regulations therefor ; but in no case shall the punishment 
for any offence exceed that allowed by law in the house of 
correction. Ibid., sec. 2. 

3. The court of common pleas may bind out, or may au- 
thorize the overseers of the poor of any town to bind out 
or employ any person chargeable or liable to be chargeable to 
the county, in the same manner that such overseers might 
do in case of a person chargeable to such town ; and the 
rights and obligations of all parties shall be the same as in 
such case. Ibid., sec. 3. 

4. When any town in this state shall cease to be organ- 
ized as a town, all paupers who may have a legal settlement 
in such town, and who have no relations by law bound to 
support them, shall be maintained by the county in which 
such town is situate, until the same shall be reorganized. 
Ibid., sec. 4. 

5. If any person shall bring from any other state and 
leave in any town in this state, or shall so bring with intent 
to leave, any poor and indigent person, having no visible 
means of support, and no settlement within the state, know- 
ing such person to be poor and indigent as aforesaid, he 
shall be punished by fine not exceeding three hundred dol- 
lars nor less than fifty dollars, or by imprisonment not ex- 
ceeding six months. Ibid., sec. 5. 

6. No master of any vessel, having passengers on board 
who have no settlement within this state, shall suffer such 



212 PAUPERS NOT CHARGEABLE TO 

passengers to land, until he shall give bond to the state in a 
sum equal to two hundred dollars for every such passenger, 
with sufficient sureties to the satisfaction of the selectmen 
of the town in which such passengers are landed, condition- 
ed to indemnify and save harmless such town, and every 
town and county in the state, from all expenses which for 
three years thereafter may arise from such passengers, whose 
names shall be inserted in said bond. Ibid., sec. 6. 

7. If any master shall suffer any such passenger to land 
before such bond shall be given, unless the same shall be 
dispensed with by such selectmen on application therefor, he 
shall be punished by fine not exceeding two hundred dollars 
for each passenger so landed, or by imprisonment not ex- 
ceeding one year. Ibid., sec. 7. 

8. Said bond shall be filed by the selectmen who approve 
the same in the office of the clerk of the court of common 
pleas for the county, and may by leave of the court be pro- 
secuted for the benefit and at the expense of the party ap- 
plying. Ibid., sec. 8. 

9. If any person shall bring and leave, or bring with in- 
tent to leave, any poor and indigent person having no visible 
means of support, into any county in this state from any other 
county in which such poor person may have resided or been 
supported, such poor person not having a legal settlement 
in any town, nor any relations chargeable for his support 
within the county into which such poor person is brought, 
knowing him to be thus poor and indigent, he shall be pun- 
ished by fine not exceeding two hundred dollars, nor less 
than thirty dollars, or by imprisonment not exceeding six 
months. Ibid., sec. 9. 

10. Every such poor and indigent person may be remov- 
ed from said county by order of the court of common pleas 
into the county from which he was brought as aforesaid. 
Ibid., sec. 10. 

11. The form of the indentures authorized by section 3 
may be similar to those in sections 25 and 26 of the pre- 
ceding chapter. The following alterations should be made : 
omit the words, " by the authority in them vested by law," 
and insert instead — by the authority and in behalf of the 
court of common pleas for said county ; also, after the words, 
" residing in said town of H.," add the words — and charge- 
able to said county. 



ANY TOWN OR PERSON. 213 

12. The form of the condition of the bond in section 6 
may be : 

Now the condition of this obligation is such, that where- 
as the said is the master of a vessel having 
passengers on board who have no settlement within the 
state of New-Hampshire, the names of said passengers be- 
ing as follows, viz. : 

and whereas said master is desirous of landing said passen- 
gers in the town of P., in said state : Now if the said obli- 
gors shall indemnify and save harmless said town of P., and 
every town and county in said state from all expenses which 
for three years from and after the date hereof may arise 
from such passengers, then this obligation to be void : oth- 
erwise to remain in full force. A. B. (seal.) 
Signed, sealed and delivered in C. D. (seal.) 
presence of us: E. F. (seal.) 

13. The form of a pauper account against a county may 
be: 

The county of H. to the town of N., . , . Dr. 
For the board of A. B,, a county pauper, 
twenty weeks, from to , at 

$1.50 per week, $30.00. 

(Make out the account as in a notice to a town.) 
And the overseers of the poor of said town of N. hereby 
certify that the said A.B. was during the time specified in said 
account a poor person residing in said town, and unable to 
support himself, and was standing in need of relief, and that 
application was made to the town therefor ; that the sums 
charged in said account were actually expended for the re- 
lief and maintenance of the said A. B., and are in our 
opinion reasonable charges ; and that the said A. B. has no 
settlement in said town of N., nor any settlement in any 
other town in this state, or any relation in this state of suf- 
ficient ability chargeable with his maintenance, to our 
knowledge or belief. 

N. L. i Overseers of the Poor 
R. G. } in 

S. T. J N 

An affidavit in common form of the truth of this certifi- 
cate may be added. 

Each court of common pleas establishes its own rules as 



214 



MAINTENANCE OF BASTARDS. 



to the evidence required to sustain an account against the 
county. The statute requires "proper vouchers" to be 
filed with the account. If the supplies are furnished by 
the overseers, their affidavit is the best voucher. If money 
is paid to other persons, their receipts should be taken and 
filed in court. An affidavit may not always be required, 
but had better be added in all cases, as it strengthens the 
evidence of the claim. 

14. For the provisions relative to the insane, see ch. 48. 



CHAPTER 46. 

OF THE MAINTENANCE OF BASTARDS. 






1. Bastardy complaint, how 
made. 

2. Form of bastardy complaint. 

3. Form of warrant thereon. 

4. Bond required, how and when. 

5. Form of justice's order. 

6. Form of the bastardy bond. 

7. Form of the mittimus. 

8. Proceedings in court thereon. 

9. Mother may be a witness — 
when. 

10. Bond for support required. 

11. Town admitted to prosecute. 

12. Town may make complaint, 

when. 



13. Proceedings on such com- 

plaint. 

14. Form of complaint by town. 

15. Costs for defendant, when. 

16. Respondent imprisoned, how 
discharged therefrom. 

17. Respondent absconding,what. 

18. Respondent to be brought 

back. 

19. Complaint, requisites of. 

20. Complaint, evidence under. 

21. Custody of child, mother 8 
right. 

22. Settlement, when valid. 



1. If any woman is pregnant with a child, which if born 
alive may be a bastard, she may make complaint in writing 
under oath to any justice of the peace in this state against 
any man, charging him with having begotten such child ; 
and said justice may thereupon issue his warrant, command- 
ing the person so charged to be brought before some justice 
of the peace in and for the county in which the offence is 
alleged to have been committed, or in which the person so 
charged may reside. R. S., ch. 68, sec. 1. 



MAINTENANCE OF BASTARDS. 215 

2. The form of the complaint in such case may be : 

To J. H., Esquire, one of the Justices of the Peace in and 
for the County of Hillsborough. 
Complains Ruth May, of B., in said county, single wo- 
man, that she is now pregnant with a child which, if born 
alive, may be a bastard, and that said child was begotten 
on the first day of May last, at the house of A. B , in said 
B., by John Smith, of said B. ; therefore the said complain- 
ant prays that the said John Smith may be apprehended, 
and held to answer to this complaint, and further dealt with 
according to law. Ruth May. 

Hillsborough ss., January 2, 1844. Then appearing 
the said Ruth May made oath that the above complaint 
by her signed is in her belief true. 
Before me, 

J. H., Justice of the Peace. 

3. The form of the warrant issued thereon, and attached 
to the complaint, may be : 

STATE OF NEW-HAMPSHIRE. 

Hillsborough ss. To the Sheriff of said County, or his 
deputy, or any Constable of the town of B., in 
\3| said County. 

W&^X Whereas Ruth May, of B., in said county, 
singlewoman, has made her complaint aforesaid to me, J. H., 
one of the justices of the peace in and for said county of 
Hillsborough, upon oath, against John Smith, of said B., 
housewright : 

We command you, in the name of said state, to appre- 
hend the said John Smith, and bring him before me, or 
some other justice in and for said county of Hillsborough, 
to answer to the said complaint. Hereof fail not. 

Given under my hand and seal, this second day of Janu- 
ary, in the year eighteen hundred forty-four. 

J. H., Justice of the Peace. 

The form of the return thereon may be : 

Hillsborough ss., January 6, 1844. I have appre- 
hended the within named John Smith, and now have him 
before J. H., esquire, as within commanded. 

M. G., Deputy Sheriff. 




216 MAINTENANCE OF BASTARDS. 

The Revised Statutes have made some changes in the 
mode of proceedings. The complaint may be made before 
a justice in any county in which the complainant is dwelling 
at the time, and may be returned to and heard before any 
justice of the county. That the town in which he lives is 
interested, is no objection. If the offence was not commit- 
ted in such county, and the person complained against re- 
sides in another county, the warrant is to be directed " to 
the sheriff or his deputy" of the county in which the of- 
fence was committed, or the offender resides, and the offend- 
er should be ordered to be carried before some justice of one 
of those counties. If the offence was committed in the coun- 
ty in which the complaint is made, the warrant should be 
directed " to the sheriff of said county," &,c. (as in the form) 
and the offender ordered to be carried before some justice of 
the county in which the offence was committed, or in which 
the offender then resides. The justice before whom he is 
brought, on a hearing and proper evidence, may order him 
to give bond to appear at the term of the court of common 
pleas next to be hoi den in and for the county in which the 
offence was committed, as the trial must be in that county. 
If the offender has escaped from the county in which the 
complaint is made, the warrant should be directed as in the 
last case named, and the offender brought before some jus- 
tice of the county in which he is arrested, who may order 
him sent back to the county in which the complaint was 
made, for examination. 

4. The justice before whom such person shall be brought, 
if he see fit, may order such person to give bond to the com- 
plainant, in a reasonable sum, with sufficient surety or sure- 
ties, to the satisfaction of the justice, conditioned to appear 
at the term of the court of common pleas next to be holden 
within and for the county in which the offence is alleged to 
have been committed, to answer to such complaint, and to 
abide the order of said court thereon, and in default thereof 
may commit him until such order is performed. R.S., ch. 68. 

5. The form of the examination and order may be : 

Hillsborough ss. Be it remembered that on the sec- 
ond day of January, in the year eighteen hundred forty-four, 
Ruth May, of B., in said county, single woman, came be- 
fore me, J. H., one of the justices of the peace in and for 
said county, and upon oath made her complaint that she is 



MAINTENANCE OF BASTARDS. 217 

now pregnant with a child. [Here copy the rest of the 
Complaint down to the word " therefore"] Whereupon 
the said John Smith being afterwards, on the sixth day of 
January, brought before me, the said justice, by virtue of a 
warrant by me issued on said complaint, and after hearing 
all the proofs and allegations on the part of said Ruth May 
and John Smith respectively, it appearing to me that the 
said John Smith ought to be held to answer further to said 
complaint : 

It is therefore ordered by me, the said justice, that the 
said John Smith give bond to the said Ruth May in the sum 
of four hundred dollars, with two sufficient sureties, condi- 
tioned that the said John Smith do appear at the term of 
the court of common pleas next to be holden at Amherst, 
in and for said county of Hillsborough, on the second Tues- 
day of April next, and there answer to said complaint, and 
abide the order of the court thereon ; and that he stand 
committed until this order is performed. 

J. H., Justice of the Peace. 

The term of the court at which the offender is ordered 
to appear, should always be the one next to be holden in 
and for the county in which the offence is alleged to have 
been committed. 

6. The form of the bond in such case may be : 
Know all men by these presents, that I, John Smith, of 
B., in the county of H., as principal, and A. B. and C. D., 
of said B., as sureties, are holden and stand firmly bound 
unto Ruth May, of said B., single woman, in the sum of 
four hundred dollars, to the payment of which well and 
truly to be made to the said Ruth May we bind ourselves,^ 
our heirs, executors and administrators firmly by these pre- 
sents. Witness our hands and seals, this sixth day of Jan- 
uary, 1844. 

The condition of the foregoing obligation is such, that 
whereas on the second day of January, 1844, the said Ruth 
May made complaint on oath to J. H. , a justice of the peace in 
and for said county of H., that she was pregnant with a child 
which if born alive would be a bastard, and that said child 
was begotten on the first day of May, 1843, at the house of 
A. B., in said B., by the said John Smith ; and whereas the 
said John Smith has been ordered by the said justice to 
appear at the term of the court of common pleas next to 



218 MAINTENANCE OF BASTARDS. 

be holden at Amherst, in and for said county of Hillsbo- 
rough, on the second Tuesday of April next : Now if the 
said John Smith shall appear at said court at the time and 
place aforesaid, and shall answer to said complaint, and 
abide the order of the court thereon, then this obligation to 
be void ; otherwise to be in full force. 

Signed, sealed and delivered John Smith. (Seal.) 

in presence of us : A. B. (Seal) 

C. D. (Seal) 

7. The form of the mittimus to be made out in case the 
offender neglects to give bond, may be : 

STATE OF NEW-HAMPSHIRE. 

Hillsborough ss. To the Sheriff of said County, or his 
-t^KJn*^*. deputy, or either of the Constables of the Town 
IH)^ °f -B"> * n sa *d County. 

Whereas on the second day of January, in 
the year eighteen hundred forty-four, Ruth May, of B., in 
said county, single woman, came before me, J. H., one of 
the justices of the peace in and for said county, and upon 
oath made her complaint that she is now pregnant with a 
child which if born alive may be a bastard, and that said 
child was begotten on the first day of May last at the house 
of A. B., in said B., by John Smith, of said B. : — 
Whereupon the said John Smith being afterwards, on the 
sixth day of January, brought before me, the said justice, 
by virtue of a warrant by me issued on said complaint, and 
after hearing all the proofs and allegations on the part of 
said Ruth May and John Smith respectively, it appearing 
to me that the said John Smith ought to be held to answer 
further to said complaint— It was therefore ordered by me, 
the said justice, that the said John Smith give bond to the 
said Ruth May in the sum of four hundred dollars, with 
two sufficient sureties, conditioned that the said John Smith 
appear at the term of the court of common pleas next to 
be holden in and for said county of Hillsborough, on the 
second Tuesday of April next, and there answer to said 
complaint, and abide the order of the court thereon, and to 
stand committed until said order be performed : And 
whereas the said John Smith has neglected to perform said 
order — 

In the name of said state you are commanded to take 



MAINTENANCE OF BASTARDS. 219 

and convey the said John Smith to the common jail in said 
county, and deliver him to the keeper thereof; and the 
keeper thereof is required to receive the said John Smith 
into his custody in said jail, and him there safely keep until 
he give bond as aforesaid, or be discharged by due course of 
law. Herein fail not. 

Given under my hand and seal, this sixth day of January, 
in the year eighteen hundred forty-four. 

J. H., Justice of the Peace. 

It will be observed that the greater part of the mittimus 
is a copy of the examination and order in sec. 4. The 
justice in making out a mittimus should always follow the 
record of the examination in the same manner, making such 
slight alterations as the sense or grammar may require. 
The directions and forms for these proceedings belong 
more properly, however, to a form book for justices. 

8. Said justice shall make a certified copy of each paper 
in said case, and shall deliver the same to the complainant, 
or return the same to said court on or before the first day 
of the term aforesaid ; and said complaint shall be entered 
at said term, and the person charged may be ordered to give 
bond as aforesaid to the satisfaction of the court, for his 
appearance at any future day or term, and to abide the or- 
der of the court. The complaint shall be tried by the court, 
unless either party requests a jury, in which case it shall be 
tried by a jury, and the issue shall be, chargeable or not 
chargeable. R. S., ch. 68, sec. 3. 

9. Any woman who shall have made her complaint in the 
manner aforesaid, charging any man with being the father 
of the child, and stating the time when and the place where 
the same was begotten, and shall have declared in the time 
of her travail the same person to be the father of the child 
to the persons attending her, if any person did attend her, 
and shall have continued constant in such accusation, shall 
be a competent witness on the trial of such complaint, her 
credibility being left to the court or jury who try the cause ; 
but no woman shall be admitted as a witness as aforesaid 
who shall have been convicted of any crime rendering her 
incompetent to testify in any other case. Ibid., sec. 4. 

10. If any man is found chargeable as aforesaid, the court 
shall order him to pay such sum as they shall deem reason- 
able, to the mother of the child or to the selectmen of the 



220 MAINTENANCE OF BASTARDS. 

town liable by law for the maintenance of the child, to be ap- 
plied for such maintenance, and also to pay costs of prosecu- 
tion, and may order him, or the mother, or both, to give 
security to save such town harmless from all charge for the 
maintenance of such child. Any person who shall neglect or 
refuse to obey any such order may be committed until the 
same is obeyed. Ibid., sec. 5. 

11. If any woman, after having made her complaint as 
aforesaid, shall abandon the same, the town liable by law as 
aforesaid shall, upon application to the court or justice in 
writing, made for that purpose by their selectmen, agent or 
attorney, be admitted to prosecute said complaint, a record 
whereof shall be made, and all subsequent proceedings there- 
on shall be the same as if said complaint had been institut- 
ed originally by such town. Ibid., sec. 6. 

12. If the mother of a bastard child neglects or refuses 
to make complaint as aforesaid, or having made a complaint 
shall neglect to prosecute the same in the court aforesaid, 
or shall, in the opinion of the selectmen of any town liable 
by law as aforesaid, make a false complaint, any justice of 
the peace, to whom complaint may be made by said select- 
men against any man, charging him with having begotten 
such bastard, may issue his warrant, under his hand and 
seal, directing such person to be brought before some justice 
of the peace in and for the county in which the offence was 
committed, or in which such offender may reside. Ibid., 
sec. 7. 

13. Such complaint shall be in the name of such town, 
and the proceedings thereon shall be the same in all respects 
as if the mother had complained as aforesaid. If found 
chargeable, he shall be ordered to give security to save the 
town harmless from the maintenance of such child, and to 
pay all costs of prosecution, and to stand committed until 
said order shall be performed. Ibid., sec. 8. 

14. The form of the complaint made by the selectmen 
may be : 

To J. H., Esquire, one of the Justices of the Peace in and 
for the County of Hillsborough. 
Complains the town of N., in said county, by A. B. 
and C. D., selectmen of said town, that one Ruth May, of 
said N., is now pregnant with a child, which if born alive 
may be a bastard and become chargeable to said town 
of N., and that said child was begotten on or about the first 



MAINTENANCE OF BASTARDS. 221 

day of May last, in said town of N., by John Smith of said 
N., and that the said Ruth May refuses to make complaint 
against the said John Smith according to the statute in such 
case made and provided. Wherefore your complainant 
prays that the said John Smith may be apprehended and 
held to answer to this complaint, and further dealt with ac- 
cording to law. A. B. 

CD. 

Hillsborough ss., January 2, 1844. Then appearing 
the said A. B. and C. D. made oath that the foregoing com- 
plaint by them signed is in their belief true. Before me, 

J. H., Justice of the Peace. 

The warrant and other proceedings may be similar to 
those in case of a complaint made by the woman herself, with 
such slight alterations as the difference of the parties may 
require. The bond should run to the town. 

If the complaint by the town is not made until after the 
birth of the child, omit the words — " is now pregnant with 
a child, which if born alive may become," and insert instead 
— on the first day of February last was delivered of a 
male child, which was and is still living, and is a bastard, 
and is — 

If the mother has made a complaint and neglected to 
prosecute it, omit the words, " refuses to make complaint 
against the said John Smith," and insert instead — having 
made a complaint against the said John Smith, has neglected 
to prosecute the same in the court of common pleas — 

15. When any town is a party to such prosecution, and 
the party accused shall be found not chargeable, he shall re- 
cover his costs against such town. Ibid., sec. 9. 

16. If any person, committed to prison by virtue of this 
act, is poor and unable to pay such sum, or to procure such 
security as may be ordered, said court may, on application 
for that purpose, discharge such person from imprisonment 
at such time and upon such terms as they shall think expe- 
dient. Ibid., sec. 10. 

17. Whenever a warrant shall be issued as aforesaid by any 
justice, and the person charged therein shall, either before 
or after the issuing thereof, escape or go out of the county, 
the sheriff thereof or his deputy, or any constable of the 
town to whom such warrant shall be directed, may pursue 
such person and apprehend him in any county in this state, 
and carry him before any justice in and for the county 



222 MAINTENANCE OF BASTARDS. 

in which he was so apprehended, for examination. Ibid., 
sec. 11. 

18. If it shall appear to said justice that said warrant was 
duly issued, and that such person did escape or go out from 
such other county as aforesaid, he shall issue his warrant 
thereupon, directed to such sheriff, deputy or constable, 
commanding such officer to carry such person before some 
justice in and for the county from which he has so escaped 
or gone out, for trial, and that such further proceedings may 
be had thereon as the law requires. Ibid., sec. 12. 

19. The complaint, when made by the woman, must be 
sworn to before the birth of the child, but may be made by 
the town afterwards. The trial, in either case, need not be 
until after the birth of the child. In order to entitle the 
woman to be a witness in her own behalf on a complaint by 
her made, she must make a declaration during her travail 
(that is, before delivery — 5 Pick. iJ., 63 ; 6 Greenleaf R. y 
460,) that the person charged is the father of the child, and 
continue constant in the accusation, and this must be done 
in the presence of one or more witnesses. The mother 
cannot testify that she made such declarations. 5 Pick, R., 
63. But she may be a witness in behalf of the town with- 
out such declaration, and the town may come in and take up 
her complaint, and prosecute it at any stage of the proceed- 
ings, so as to make her a witness. 3 JY. H. R., 141. 

20. If the mother marry before a prosecution, the husband 
should join in the complaint. 16 Maine R., 33; the ob- 
ject is to compel the real father to support the child. And 
the statute of limitations is no bar to such a prosecution. 
16 Maine R., 38. If the mother dies before a hearing, her 
dying declarations may be used in evidence. 3 JY. H. R., 
161. By " continuing constant in such accusation" is to be 
understood, stating the same person, and no other, to be the 
father of the child, from the time of making oath to her 
complaint up to the time of the trial. S Pick. R., 560. 
Evidence that she had previously accused other persons, is 
admissible to impeach her credibility as a witness, but evi- 
dence that she was unchaste, or had had connection with 
other men, is not admissible in Massachusetts. 3 Pick. JR., 
194; 4 Vermont R. ,281. The selectmen of a town which 
is interested may be witnesses, even if they made the com- 
plaint. 5 Conn. R., 416. And depositions are admissible. 
6 Pick. R., 104 ; 2 Conn. R. } 357. 



GUARDIANSHIP OF SPENDTHRIFTS. 223 

21. The mother of an illegitimate child has a right to 
the custody and control of the child as against the putative 
father, and is bound to maintain it, as its natural guardian. 
8 N. H. R., 417. And when the putative father has given 
a bond to indemnify the town against liability for the main- 
tenance of an illegitimate child, he cannot relieve himself 
from his liability to the town by demanding the child at the 
age of twenty-two months, and offering to maintain it ; the 
mother refusing her assent to part with the child. Ibid. 

22. A settlement between the father and mother of the 
child, and a release of all damages by the mother, will not 
discharge the father from his liability to the town for the 
maintenance of the child. The settlement, however, as be- 
tween the parties is good, and a note given thereon is valid, 
there being in law a valuable consideration therefor. 



CHAPTER 47. 

OF THE GUARDIANSHIP OF SPENDTHRIFTS AND 
INSANE PERSONS. 



1. Guardian for insane appoint- 
ed. 

2. Meaning of word, " insane." 

3. Form of application in sec. I. 

4. Form of notice to defendant. 

5. Form of inquisition. 

6. Duties of selectmen therein. 



9. Proceedings in probate court. 

10. Form of complaint in sec. 6. 

11. Notice of appointment given. 

12. Duties of guardians. 

13. Contracts, when void. 

14. Contracts, when ratified. 

15. Guardian, when removed. 



7. Proceedings in probate court. 16. Guardianship, how revoked. 

8. Guardian for spendthrift. J 

1. Upon application by any relative or friend of any in- 
sane person, or upon the like application of the overseers of 
the poor of the town in which such person lives, made to 
the judge of probate for the county in which said town is 
situate, that a guardian may be appointed over such person, 
the judge shall cause the selectmen of the town in which 



224 GUARDIANSHIP OF SPENDTHRIFTS 

such person lives to make inquisition thereinto. R. S., ch. 
150, sec. 10. 

2. The word " insane,'''' as used in this section and in 
section 4, includes " an idiot, a non compos, lunatic or dis- 
tracted person" R. S., ch. 1, sec. J 5. If the person 
named in the application belongs to either of these classes, 
he should nevertheless be styled in it insane. 

An idiot is one who has a natural imbecility of mind ; 
one who is without the power of reason, either partially or 
wholly, by a perpetual infirmity from his birth. 

A lunatic, or distracted person, is one who has a partial 
or total derangement or excitement of the mind, generally 
arising after birth. The word non compos includes not 
only lunatics, but persons who lose their intellects by disease, 
or in some other mode, after birth. 

There is a class of persons who are incapable of managing 
their own affairs properly, who do not come within either of 
the above classes strictly, or within the words of the statute, 
such as those who are rendered incapable from the infirmi- 
ties of body or age. If the infirmities of such person are 
such as to impair his mind essentially, he may be deemed a 
non compos. Probate Directory, 352. The memory of 
a man may be greatly impaired, and he still retain his rea- 
son and not be a non compos mentis. 4 N. H. R., 68. 

3. The form of the application in such case may be : 

To the Honorable L. TV., Judge of Probate for the County 
of Hillsborough. 

The subscribers, overseers of the poor of the town of N., 
in said county, respectfully represent that A. B., a person 
living in said town, is an insane person, and incapable of 
taking care of himself; we therefore request that you will 
cause inquisition thereinto to be made, and a guardian for the 
said A. B. to be appointed, according to the law in such 
cases made and provided. 

A. B. \ Overseers of the Poor 
C. D. } of 

E. F. ) N . 

N , May 1, 1844. 

4. The selectmen should give notice to the person named 
in the warrant of inquisition seasonably, of the time and 



AND INSANE PERSONS. 225 

place of making such inquisition, as it is a question involv- 
ing the enjoyment of his liberty and property, and he has a 
right to be heard thereon. A week's notice would be suf- 
ficient in any case ; in some cases a day or two would be 
seasonable notice. 14 Mass. R., 222. 

The form of the notice may be : 

To C. />., of E. 

You are hereby notified that we, the subscribers, will at- 
tend at the dwelling-house of G. H., in said E., on Tuesday, 
the tenth day of July instant, at ten o'clock in the forenoon, for 
the purpose of making an inquiry into your case, according 
to the directions and for the object contained in the forego- 
ing warrant to us directed, at which time and place you may 
attend, and be heard thereon. 

Given under our hands, this third day of July, 1843. 

E. L. } Selectmen 
of 



T. G. } 
H. J. j 



This notice should be made on the warrant, and an at- 
tested copy of the warrant and notice given to the insane 
person, and affidavit of the service of the notice made on 
the original. 

5. The selectmen should make careful enquiry and ex- 
amination, not only of the person named in the application, 
but of other persons, as to the capacity of such person ; and 
if satisfied that he belongs to either of the classes described 
in sec. 2, and is incapable of taking care of himself and his 
property, should make return of their inquisition on the 
back of the order to the judge of probate, as follows : 

To the Honorable L. TV., Judge of Probate for the County 

of Hillsborough. 

The subscribers, selectmen of the town of N., in said 
county, in compliance with the within order, having gone 
to the within named A. B., and made of him a careful en- 
quiry and examination by the best means in our power as to 
his capacity, and as to his being an insane person, and inca- 
pable of taking care of himself, and having made careful 
inquisition thereinto by the examination of other persons, 



226 GUARDIANSHIP OF SPENDTHRIFTS 



we are of the opinion that the said A. B. is an insane per- 
son, and incapable of taking care of himself. 

In witness whereof we have hereunto set oar hands, this 
tenth day of May, 1844. 

G. H. ) Selectmen 
E. T. of 
L. B. j N 

6. "It is clearly the duty of selectmen in these cases to 
go to the person to whom the inquisition relates, and there 
diligently inquire as to his capacity. In many cases there 
can be no difficulty in ascertaining the fact, but in some 
cases there may be doubt. The state of a man's mind 
can be known only from what he does and from what he 
says. Generally a conversation for a short time with the 
person would enable selectmen to settle the fact. Where 
that is found not satisfactory, they should inquire into his 
conduct and his management of affairs, by witnesses under 
oath. When they have found the fact, whether insane or 
not insane, (whether he belongs to either of the classes men- 
tioned in sec. 2,) they should distinctly return it to the 
judge of probate." 4 N. H. R., 68. Evidence that he is 
old or less careful of his property, is not sufficient. 8 Mass. 
R., 129; or that his memory is impaired, without saying 
that his reason is impaired. 4 N. H- R., 68. 

7. If upon the return of such inquisition, and due exam- 
ination had, it shall be decreed that such person is insane, the 
judge shall appoint a guardian over such person ; but no such 
decree or appointment shall be made until such person shall 
have been cited to appear and show cause against the same. 
R. S.,;ch, 150, sec. 11. 

8. Any person who by excessive drinking, gaming, idle- 
ness, debauchery, or vicious habits of any kind, shall so 
waste, spend, or lessen his estate, or shall so neglect to at- 
tend to any useful calling or business for which he may be 
capable, as thereby to expose himself or his family, or any 
of them, to want or suffering circumstances, or to endanger 
or expose the town to which he belongs, in the judgment of 
the selectmen of the town in which he resides, to expense 
for the support of himself, or any of his family, shall be 
deemed a spendthrift. Ibid., sec. 12. 

No person is a " spendthrift," within the meaning of this 
section, however idle or extravagant he may be, unless he 
thereby exposes himself or family to want, or the town to 



AND INSANE PERSONS. 227 

expense for the support of himself or family. The object of 
these provisions is solely the prevention of pauperism. 

9. Upon complaint thereof in writing made to the judge 
of probate for the county where such person resides, by said 
selectmen, said judge shall appoint a day of hearing ; and if, 
upon due notice and examination had, it shall appear that 
such person comes within the description in the preceding 
section, said judge shall appoint a suitable person to be 
guardian over such spendthrift. Ibid., sec. 13. 

10. The form of a complaint, under sec. 6, may be : 
To the Honorable the Judge of Probate for the County 

of Hillsborough. 

The subscribers, selectmen of the town of N., in said 
county, respectfully represent that in their judgment T. B., 
of said N., does by excessive drinking, so waste, spend or 
lessen his estate as thereby to expose himself or his family 
to want or suffering circumstances, and also to endanger 
and expose said town of N. to expense for the support of 
himself or family. 

They therefore pray that your Honor would appoint some 
person or persons as guardian or guardians to the said T. B., 
agreeably to the law of the state in such case made and 
provided. 

Dated at said N., this first day of May, 1843. 

T. F. ) Selectmen 
W. S. V of 
J. T. J N . 

If the cause is any other than " excessive drinking," it 
should be stated distinctly in the complaint, and more than 
one cause may be stated in the complaint. Evidence of the 
facts so stated should be furnished to the court of probate, 
and this is done in most cases by witnesses produced at 
court at the time and place of hearing. Depositions may 
sometimes be used. 

11. Every such guardian shall give bond to the judge of 
probate ; shall give notice of his appointment, by posting up 
a notice thereof in the town ; shall return an inventory, 
and take care of his ward as provided in the R. S., ch. 
150. 

12. Every guardian appointed over any spendthrift shall 
inculcate habits of sobriety and industry in his ward, and 
may employ his ward, or the children of his ward, in any 



228 GUARDIANSHIP OF SPENDTHRIFTS. 

suitable labor, or bind them out to labor, by a written con- 
tract for a term not exceeding one year. Ibid., sec. 19. 

13. No bargain or sale of real or personal estate, and 
no contract of any nature whatever, made by a person un- 
der guardianship, after the appointment made and during 
the continuance of such guardianship, shall be valid in law. 
Ibid., sec. 20. 

14. No such bargain, sale or contract shall be valid, if 
made after an attested copy of any complaint presented to a 
judge of probate upon which a guardian shall be appointed, 
and the order of notice thereon, shall have been filed with 
the clerk of the town in which the person complained of 
resides, unless the guardian, by an instrument under his 
hand and seal, shall afterwards approve and ratify the same. 
Ibid., sec. 21. 

15. The judge, upon petition and after due notice, may 
remove any guardian, whenever in his opinion it may be 
necessary or expedient, and appoint another in his stead. 
Ibid,, sec. 29. 

16. If the cause for which any guardianship was granted 
has ceased or is removed, such guardianship, upon like peti- 
tion and notice, shall be revoked. Ibid., sec. 30. 



229 



CHAPTER 48 



OF THE DUTY OF SELECTMEN RELATIVE TO 
APPRENTICES AND INSANE PAUPERS. 



1. Minors, how bound out. 

2. Indentures, requisites of. 

3. Indentures, by whom kept. 

4. Form of indentures. 

5. Form of approbation thereon. 

6. Duty to protect apprentice. 

7. Form of complaint therefor. 

8. Form of warrant thereon. 

9. Proceedings before justice. 

10. Form of justice's order. 

11. Insane sent to hospital, when. 



12. Form of petition in such case. 

13. Insane in jail, when sent. 

14. Insane town pauper, how 
sent. 

15. Insane county pauper, how 

sent. 

16. Expense of support recovered. 

17. Insane sent by friends, when. 

18. Form of bond to the hospital, 
and general remarks. 



1 . Children under the age of fourteen years may be bound 
as apprentices or servants until that age, without their 
consent, by their father, if living, or if not living by their 
mother or guardian ; and if such child has no parent or 
guardian, he may bind himself, with the approbation of the 
selectmen or overseers of the poor of the town where he 
resides. R. S., ch. 151, sec. 1. 

The Revised Statutes seem to have made some changes 
in the laws relative to binding out minors with the appro- 
bation of the selectmen. No such approbation seems to be 
made necessary by the statute, except in cases where the 
minor is " under the age of fourteen years," and " has no 
parent or guardian," and the binding out can only be " until 
that age," fourteen years. It may be proper enough, how- 
ever, to certify their approbation on any indentures of a 
minor having no parent or guardian. Formerly the statute 
required an approval in such cases, and authorized a bind- 
ing out until the age of twenty-one ; when the minor arrives 
at the age of fourteen new indentures may now be necessary. 

2. No minor shall be bound as aforesaid except by an in- 
denture of two parts, signed, sealed and delivered by both 
parties ; and when the minor shall bind himself, with the 
approbation of the selectmen or overseers of the poor as 
aforesaid, such approbation shall be certified in writing, 
signed by them on each part of the indentures. Ibid., sec. 3. 

3. One part of said indentures shall be kept by the master 



230 DUTY OF SELECTMEN RELATIVE TO 

or mistress, and the other part by the parent or guardian 
of the minor ; or, if approved by the selectmen or overseers 
of the poor, by the town-clerk of the town, in trust for said 
minor. Ibid., sec. 4. 

4. The form of the indenture, in sec. 1, may be: 
This indenture, made between A. B., a minor under the 
age of fourteen years, having no parent or guardian, and 
residing in the town of N., in the county of H., of the one 
part, and C. D., of said N., of the other part, 

WITNESSETH : 

That the said A. B., with the approbation of the select- 
men of said N., hath bound and doth hereby bind himself 
unto the said C. D., as an apprentice to learn the trade and 
business of a farmer, and to live with and serve him faithfully 
as an apprentice from the date hereof until the tenth day of 
June, in the year eighteen hundred forty-five, at which time 
he will be of the age of fourteen years ; and during all said 
time he shall obey the lawful commands of his said master, 
and conduct himself as a faithful apprentice ought to do. 

And the said C. D. on his part, for the consideration 
aforesaid, covenants that he will faithfully teach his said 
apprentice, or cause him to be taught, the said trade or bu- 
siness of a farmer, in the best manner he can, and will cause 
him to be taught to read, write and cipher, and will furnish 
him with proper and sufficient clothing, food and necessa- 
ries, both in sickness and in health during said term. [Here 
insert any other conditions.] 

In witness whereof the said parties have hereto set their 
hands and seals, the first day of May, eighteen hundred and 
forty-three. 

Signed, sealed and delivered A. B. (seal) 

in presence of us : CD. (seal.) 

5. The form of the selectmen's approbation, which may 
be put on the back of each part of the indentures, may be : 
This certifies that we, the subscribers, selectmen of the 
town of N., have examined the within indentures executed by 
A. B. and C. D., and the agreements therein contained, and 
we hereby certify our approbation of the same. 

Witness our hands, at said N., this first day of May, 1843. 

T. D. ) Selectmen 
C. P. of 
L. G. ) N . 



APPRENTICES AND INSANE TAUPERS. 231 

6. All parents, guardians, selectmen or overseers, as the 
case may be, shall enquire into the usage of the minors 
bound out as aforesaid, and defend them from the cruelty, 
neglect or breach of covenant of the master ; and may make 
complaint thereof to any justice, who shall notify the par- 
ties, and hear and determine such complaint. jR. S., ch. 
151, sec. 7. 

7. The form of the complaint in such case may be : 

To J. H., Esquire, one of the Justices of the Peace in and 
for the County of H. 
Complain T. D., C. P. and L. G., selectmen of the town 
of N., in said county, that A. B., a minor, under the age of 
fourteen years, having no parent or guardian, and residing 
in said town, with the approbation of the selectmen of said 
town, on the first day of May, in the year eighteen hundred 
forty-three, bound himself by indenture to C. D., of said N., 
as an apprentice to learn the trade or business of a farmer, 
from that date until the tenth day of June, in the year eigh- 
teen hundred forty-five, at which time he will be of the age 
of fourteen years ; wherein in consideration of covenants 
on the part of the said A. B., the said C. D. did covenant 
that he would faithfully teach or cause him to be taught the 
trade or business of a farmer : (here insert all the cove- 
nants of C. D. in the indentures which are broken ;) and 
the said A. B., on said first day of May, went to reside with 
the said C. D., and has resided with him and served him 
faithfully ever since that time ; and during all said time has 
obeyed all the lawful commands of his said master, and con- 
ducted himself as a faithful apprentice ought to do ; yet the 
said C. D., unmindful of his said covenants, has neglected 
to cause said apprentice to be taught to read, write and ci- 
pher ; (or set out the ill conduct of the master complained 
of,) all which is against the peace and dignity of the state, 
and contrary to the statute in such case made and provid- 
ed : Wherefore your complainants pray process that the 
said C. D. may be directed to appear before you, and shew 
cause why the said A. B. should not be discharged from his 
said indentures, and from the service of said C. D., and also 
recover of said C. D. his damages by him sustained by rea- 
son of the breach of covenant of the said C. D., and costs. 

T. D. ) Selectmen 
C. P. of 
L. G. ( N 



232 



DUTY OF SELECTMEN RELATIVE TO 



H ss., May 10, 1844. Then appearing the said 

T. D. and C. P., made oath that the foregoing complaint by 
them signed is in their belief true. Before me, 

J. H., Justice of the Peace. 

The complaint should name the parties and set out the 
promises on both sides, as near as may be in the words of the 
indenture, and the matter complained of should be distinctly 
stated. Compare the complaint in this section with the in- 
dentures in section 4. 

8. The form of the warrant in such case may be : 

THE STATE OF NEW-HAMPSHIRE. 

Hillsborough ss. To the Sheriff of said County, or his 
<^Biy^v deputy, or either of the Constables of the town 
of N., in said County. 




Whereas complaint has been made to me, J. H., one of 
the justices of the peace in and for said county, upon oath 
as aforesaid, against C. D. of said N. : In the name of said 
state you are commanded to summon the said C. D. to ap- 
pear before me, at my dwelling-house in said N., on the 
twenty-fifth day of May instant, to answer to said com- 
plaint, by giving to the said C. D. in hand, or leaving at his 
usual place of abode, a true and attested copy of said com- 
plaint and of this order thereon, fourteen days before said day 
of hearing. Hereof fail not, and make due return thereof. 

Given under my hand and seal, this tenth day of May, in 
the year eighteen hundred forty-three. 

J. H., Justice of the Peace. 

9. If the complaint is supported, the justice may render 
judgment that such minor be discharged from his said in- 
dentures, and that the master shall pay all damages sustain- 
ed by the minor from such neglect, cruelty or breach of 
covenant; but if said complaint is not sustained the justice 
shall award costs to the respondent ; and in either case ex- 
ecution may issue therefor. R. S., ch. 151, sec. 8. 

10. The form of the justice's record of conviction may 
be: 

Hillsborough ss. Be it remembered that on the twenty- 
fifth day of May, in the year eighteen hundred forty-three, 
at a justice court holden before me, J. H., one of the jus- 



APPRENTICES AND INSANE PAUPERS. 233 

tices of the peace in and for said county, at my dwelling- 
house in N., in said county, to hear and determine upon the 
complaint on oath of T. D., C. P. and L. G., selectmen of 
said N., for that A. B., a minor, [Here copy the rest of the 
complaint.] And on the said twenty-fifth day of May, the 
said C. D. having been duly notified, both parties appeared, 
and the said C. D. having pleaded not guilty to said com- 
plaint, and having heard all the proofs and allegations, both 
on the part of the said selectmen and of the said C. D., it 
appearing to me that the complaint is just and true : It is 
therefore ordered by me, the said justice, that the said A. B. 
be discharged from the obligation of his said indenture and 
from the service of the said C. D., and that the said com- 
plainants recover of the said C. D. for the use of said A. B. 
the sum of fifty dollars, for damages by him sustained by 
reason of the aforesaid breaches of his covenant on the part 
of the said C. D., and also costs of this prosecution, taxed 
at ten dollars thirty-three cents. 

J. H., Justice of the Peace. 
Execution for costs and damages may be issued in the 
common form. 

11. If any insane person is in such condition as to ren- 
der it dangerous that he should be at large, the judge of 
probate, upon petition by any person, and such notice to the 
selectmen of the town in which such insane person is, or to 
his guardian or any other person, as the judge may order, 
which petition may be filed, notice issued, and a hearing 
had in vacation or otherwise, may commit such insane per- 
son to the asylum. R. S., ck. 9, sec. 11. 

12. The petition in such case may be as follows : 

To the Honorable L. TV., Judge of Probate for the 
County of H. 

Respectfully represents A. B., of F.,in said county, that 
C. D., of said F., is an insane person, and is now in such 
condition as to render it dangerous that he should be at 
large : Your petitioners therefore request your Honor to 
cause notice to be issued on this petition, and a .hearing 
thereon had as soon as may be, and that upon proceedings 
duly had the said C. D. may be ordered to be committed to 
the New-Hampshire Asylum for the Insane, according to 
the law in such cases made and provided. 

F , May 1, 1843. A. B. 



234 DUTY OF SELECTMEN RELATIVE TO 

The proceedings on such petition will be regulated by the 
judge of probate, on proper evidence. If the petition is not 
signed by some near relative, it had better be signed by sev- 
eral individuals, some of whom are known to the judge, if 
convenient ; as such a petition would meet with more con- 
sideration, and negative all ideas of improper management. 

12. If any insane person is confined in any jail, the court 
of common pleas may order him to be sent to the asylum, if 
they shall think it expedient. R. S. y eh. 9, sec. 12. 

14. Any insane pauper supported by any town may be 
sent to the asylum by the order of the overseers of the poor 
of such town, and there supported at the expense of such 
town ; and such expense may be recovered by such town of 
the county, town or person chargeable with the support of 
such person, in the same manner as if he had been supported 
in and by the town. Ibid., sec. 13. 

15. If the overseers neglect to make such order in rela- 
tion to any insane county pauper, the court of common pleas 
or any two judges thereof, in vacation, may order such pau- 
per to be sent to the asylum, and there supported at the ex- 
pense of the county. Ibid., sec. 14. 

If the overseers neglect, some individual should apply 
to the court for this purpose, and procure an order. 

16. Any insane person committed to the asylum by any 
court or judge of probate shall be supported by the county 
from which he was committed, and any sum so paid may be 
recovered by the county of any county, town or person 
chargeable with his support. Ibid., sec. 15. 

17. The parent, guardian or friends of any insane person 
may cause him to be sent to the asylum, with the consent of 
the trustees, and there supported on such terms as they may 
agree. Ibid., sec. 16. 

18. When a pauper is received into the Insane Hospital, 
a bond for the payment of his board is required, with suffi- 
cient sureties, and a certificate from the selectmen, or some 
person, that the signers are responsible for the amount of the 
bond. The form of the bond is as follows : 

Whereas A. B., of N., in the county of H., and state of 
New-Hampshire, a lunatic, has been admitted as a boarder 
in the New-Hampshire Asylum for the Insane, I, C. D., of 
said N., as principal, and we, E. F. and G. H., of said N., 
as sureties, do jointly and severally promise to pay to the 
said Asylum two dollars and twenty-five cents per week for 



APPRENTICES AND INSANE PAUPERS. 235 

the board of the said A. B. at said Asylum, for the term of 
thirteen weeks (if he has been insane less than one year,) 
or for the term of twenty-six weeks, (if he has been insane 
more than one year,) unless sooner cured, or in the opinion 
of the superintendent had better leave the Hospital, and for 
as much longer period as he shall remain at said Asylum ; 
and also to pay such reasonable extra charges as may be 
occasioned by the said A. B. requiring more than ordinary 
care and attention, and for damage by said A. B. done to 
the property of 'said Asylum, not exceeding in any case 
twenty-five dollars ; and to assist in returning the said A. B. 
to the said Asylum in case he shall escape therefrom, and 
to remove said A. B. from said Asylum when required to do 
so by said superintendent ; and to pay funeral charges in 
case of death, and to make said payments quarterly. 

Witness our hands and seals this day of , 184 . 

C. D. (seal) 
E. F. (seal) 
G.H. (seal) 

We, the subscribers, hereby certify that the obligors of 
the above bond are amply responsible for the performance 
of the agreements therein contained, and we have no doubt 
that it will be promptly and fairly complied with. 

D. D. 
L. B. 

The price now fixed for board at the N. H. Asylum at 
Concord is 82. 25 per week. This is very much lower than 
the price usually charged in such cases. It is a great ob- 
ject with towns and individuals to send the insane in the 
early stages of the disease, and the earlier the better. In 
recent cases, as where the patient is sent to the hospital 
within six months after the first attack, nearly ninety out of 
every hundred may be cured. If it is delayed longer, the 
chance of cure will be growing less and less yearly, till 
alter the disease has been seated several years not more than 
one in three or four recover. 

Insanity is now proved to be a disease of the brain, and 
curable like other diseases, by skilful treatment. When 
the mind becomes excited, however, it is important to re- 
move the person from the scenes and persons which are 
familiar, to some place where he may be kept quiet and 
comfortable. The insane often consider their nearest friends 
to be their enemies, and the sight of them increases their 



236 ASYLUM FOR THE INSANE. 

insanity, by keeping them constantly excited. In such cases 
the fears of friends are alarmed, and the insane are some- 
times subjected to cruelties and hardships which are dreadful. 
Such cruelty is entirely unnecessary if the patient is removed 
to the Hospital ; not one in a hundred have any restraint at 
all imposed on them, and the severest is a muffle on the hands 
to prevent injury. 

The price of board is only such as, when the Hospital is 
fall of patients, will barely defray its expenses. No trustee 
receives any compensation for his services. The Hospital 
is the property of the state and under its care. It is a char- 
itable institution, and will be a blessing to the class of suf- 
ferers for whom it was designed. There are now eight pub- 
lic hospitals in the New- Engl and states, and so beneficial 
and satisfactory have been their results that others are now 
called for and will soon be erected. 

When we consider that insanity does not shorten life, that 
it grows worse by delay, that the insane are generally objects 
of fear or disgust, that towns and individuals possess no prop- 
er places for their safe and comfortable keeping, that cruelty 
is and must be practised towards them, and that they may 
be rendered comfortable, safe and happy, and perhaps restor- 
ed to their right mind at a small expense, it is manifest that 
not only charity to the insane, but even a true economy re- 
quires that they should be sent to the Hospital. " What ye 
would that others should do to you, do ye even so to them." 



TITLE VII. 



OF THE PRESERVATION OF PEACE, HEALTH 
AND GOOD ORDER IN TOWNS. 

Chapter 49. Of fires and firewards. 
Chapter 50. Of police regulations. 
Chapter 51. Of houses of correction and the punishment 

of idle and disorderly persons. 
Chapter 52. Of police officers, constables and watchmen. 
Chapter 53. Of licensed taverners and retailers. 
Chapter 54. Of Sunday and religious meetings. 
Chapter 55. Of the safe keeping of gun-powder. 
Chapter 56. Of nuisances and contagious diseases. 
Chapter 57. Of shows and exhibitions. 
Chapter 58. General provisions relating to this Title. 



CHAPTER 49. 

OF FIRES AND FIREWARDS. 



1. Organization of board. 

2. Duties and badge at fire. 

3. Power over engines and per- 

sons. 

4. Fires in streets removed. 

5. Penalty for not obeying fire- 
ward or assuming badge. 

6. Stealing at fires. 

7. Regulations for fires made. 

8. Breach thereof, penalty. 

9. Enginemen appointed. 

10. Term of office and exemption. 

11. Buckets and ladders required. 

12. Provided by firewards, when. 



13. Tenant's remedy for expense. 

14. Building removed to stop fire. 

15. Damage therefor paid. 

16. How recovered of town. 

17. Building, notice to repair. 

18. If owner resides out of town. 

19. Repairs made by firewards. 

20. Repaired without notice, — 

when. 

21. Building ruinous, torn down. 

22. Money to firewards advanced. 

23. Penalties, how recovered. 

24. This chapter, when enforced. 
24. Powers of firewards. 



1. The firewards of each town shall choose a chairman 



238 OF FIRES AND FIREWARDS. 

and clerk, whose signature to any notice or other writing 
required to be given by the firewards shall be valid and 
sufficient. jR. $., ch. Ill, sec. 1. 

No mode of organizing the board of firewards is provid- 
ed. It seems proper, however, that the choice of chairman 
and clerk should be made at a meeting of the firewards, at 
which all should be notified to attend, and the choice should 
be actually made by a majority of the whole number. A 
certificate of the choice, signed by a majority of the fire- 
wards, and left with the clerk, will perhaps be the best ev- 
idence of such choice, and may be as follows : 

To whom it may concern : This certifies that A. B. has 
been chosen chairman, and C. D. clerk of the board of fire- 
wards of the town of N. for the year ensuing. 

E. T. \ Firewards 
G. H. > of said 
1. J. j town of N. 

N , March 15, 1843. 

The clerk should keep a record of all the proceedings of 
the board and of all notices and appointments made by the 
board, and sign the same like other clerks. 

2. The firewards shall forthwith repair to the place 
where any fire may break out, with their badge of office, 
which shall be a pole five feet long painted red, and exert 
themselves, and require assistance from all persons present, 
to extinguish and prevent the spreading of such fire, and 
to remove all property endangered thereby, and appoint 
guards to take care thereof, and suppress all tumults and 
disorders with force if necessary. Ibid., sec. 2. 

3. They shall have at all times the control of all fire-en- 
gines, fire-hooks, hose and other implements designed or 
used for the extinguishment of fire in such town, and the 
control of all persons appointed to serve in any engine, axe 
or hose company, or other association whose duty shall be 
to aid in extinguishing or preventing the spreading of fire ; 
in all things appertaining to their appointment, and power 
to direct and control the labor of all persons present at any 
fire. Ibid., sec. 3. 

4. Any fireward may and shall cause any fire deemed by 
him to be dangerous, in any street or on any wharf, to be 
extinguished or removed. Ibid., sec. 4. 



OF FIRES AND FIREWARDS. 239 

5. If any person present at any fire shall neglect or refuse 
to obey the commands of the firewards, or any of them, or 
shall unlawfully assume the badge of office of any fireward, 
he shall be liable to a penalty of not less than five nor 
more than fifty dollars. Ibid., sec. 5. 

6. If any person at any fire shall plunder, embezzle, con- 
vey away or conceal any goods or property, and shall not 
forthwith deliver the same, or give information thereof to 
the owner, if known, otherwise to one of the firewards or 
selectmen, he shall be deemed guilty of larceny. Ibid., 
sec. 6. 

7. The firewards of any town may establish such regu- 
lations respecting the kindling, guarding and safe keeping 
of fires, for the prevention and extinguishment of fires, and 
for the removal of shavings and other combustibles from 
any building or place, as they shall think expedient. Such 
regulations shall be signed by the major part of the fire- 
wards, recorded by the town-clerk, and copies of such re- 
cord, attested by the town-clerk, posted up in two or more 
public places in the town, thirty days before they shall take 
effect. Ibid., sec. 7. 

The form of such regulations may be : 

Regulations established by the Firewards. 

By virtue of the authority in us vested by law, we, the 
subscribers, a majority of the firewards in the town of N., 
in the county of H., do establish the following regulations 
respecting the kindling, guarding and safe keeping, and for 
the prevention and extinguishment of fires, to be in force 
in said town. 

I. No person shall place or keep any ashes in any 
wooden vessel, under a penalty of ten dollars for each of- 
fence. 

II. No person shall keep any friction matches, except 
in a vessel of metal, or in some incombustible place, 
under a penalty of ten dollars. 

III. No person, &c. &c. 

Given under our hands at N., this first day of April, 1843. 

P. G. \ Firewards of the town 
H. L. \ of 
M. O. J N 



A true copy. Attest : R. M., Town-Clerk. 



240 OF FIRES AND FIREWARDS. 

8. Penalties, not exceeding twenty dollars for each of- 
fence, may be prescribed by the firewards for the breach of 
such regulations, and such regulations shall remain in force 
until altered or annulled by law, or by the firewards of the 
town. Ibid., sec. 8. 

9. The firewards shall appoint enginemen and hosemen, 
not exceeding eighteen to each engine or hose company. 
If a greater number is necessary to any engine, in the judg- 
ment of the selectmen, the firewards, with the selectmen, 
may appoint not exceeding twenty-two additional men. 
They shall be appointed by warrant, signed by the chair- 
man and clerk of the firewards, and by the selectmen when 
they join in the appointment, and recorded by such clerk. 
Ibid., sec. 9. 

The form of the appointment by the firewards may be : 

At a meeting of the firewards of the town of N., duly 
holden, the following persons, viz., A. B., C. D., E. F., 
(insert all the names) were appointed members of Engine 
Company No. 1, in said town, for the ensuing year, and 
until discharged according to law. 

Witness our hands at N., this first day of April, 1843. 
P. P., Chairman of said Firewards. 
N. L., Clerk of said Firewards. 

If the selectmen unite in the appointment, after the 
words, " at a meeting of the firewards," add — and select- 
men — and they should also sign the certificate of appoint- 
ment. The certificate should be recorded by the clerk of 
the firewards. 

10. Such appointments shall continue in force until they 
shall resign, remove from town, or be discharged by the fire- 
wards and such discharge recorded by their clerk ; and 
they shall be exempted from serving on juries and from 
military duty, as provided in the law relating to the militia. 
Ibid., sec. 10. 

11. Every house or building with fire-places or stoves, 
shall have thereon a good secure ladder or ladders, reaching 
from the ground to the ridge-pole, and shall be provided with 
one leathern bucket, of such size and form as the firewards 
may prescribe, for every two fire-places or stoves in such 
house ; and if the owner shall not provide and keep in repair 
such buckets and ladders, he shall be liable to a penalty of 
six dollars for every three months' neglect. Ibid., sec. 11. 



OF FIRES AND FIREWARDS. 241 

12. In case of such neglect, the firewards may give notice 
to the owner, or to the occupant, if the owner is unknown 
or does not reside in town, to provide such buckets and 
ladders ; and if the same shall not be provided within thirty 
days after, they shall provide the same at the expense of the 
town, and the town may recover the same of the owner, or 
of the occupant, if the owner is unknown or does not re- 
side in town, by an action of debt, to be brought by the 
firewards in the name of the town. Ibid., sec. 12. 

The form of such notice may be : 
To A. B., of C. 

You are hereby notified that the dwelling-house owned 
by you, situated on East-street in said C, is now destitute 
of a good secure ladder thereon, reaching from the ground 
to the ridge-pole, and also of two leathern buckets, which 
ladder and buckets the law in such case made and provided, 
adopted by said town, requires you to provide within thirty 
days. By direction of the firewards of said town. 

P. P., Chairman. 

May 1, 1843. D. D., Clerk. 

13. Any tenant, who shall be obliged, by virtue of this 
act, to pay any money which the lessor ought to have paid, 
may retain the same out of his rent, or recover the same of 
the lessor by action. Ibid., sec. 13. 

14. The major part of the firewards present at any fire 
may cause any building or thing whatever to be pulled down, 
blown up or removed, that they shall judge necessary to stop 
the progress of such fire, and any fireward may require as- 
sistance from any person present at such fire, for that pur- 
pose. Ibid., sec. 14. 

15. The selectmen on application shall appraise the dam- 
age done to any building or thing, by order of the firewards 
as aforesaid, assess a tax for the payment thereof, and make 
compensation therefor to the owner, unless it shall appear 
that the fire began in such building, or that the same must 
have been burned if it had not been destroyed or removed. 
Ibid., sec. 15. 

16. Upon the refusal of the selectmen, or their neglect for 
three months after such application, to appraise such dam- 
age and assess such tax, the party injured may petition the 
court of common pleas for redress ; and such court, after 
due notice to the town, shall ascertain such damages, and 



242 OP FIRES AND FIREWARDS. 

render judgment and issue execution therefor, and for costs 
against the town. Ibid., sec. 16. 

17. The firewards shall give written notice to the owner 
of any building by them deemed to be dangerous by reason 
of decay, want of repairs or otherwise, to repair or alter 
the same, which notice shall contain a particular account of 
the repairs or alterations required to be made. Ibid., sec. 17. 

The form of the notice in such case may be : 

To A. B., of C. 
You are hereby notified that the building on Broad-street 
in said C, owned by you, and now occupied by D. P., is 
in our opinion dangerous by reason of want of repairs, and 
that the following repairs are required to be made in order 
to render the same secure against fire, viz. : 

You are therefore required by the firewards of said C, 
and by virtue of the authority in them vested by law T , to cause 
the said repairs to be made to said building without delay, 
under the penalty in such case made and provided. 
Witness our hands, this first day of May, 1844. 

R. M., Chairman of the Firewards of the town of . 

C. P., Clerk of said Firewards. 

18. If the owner do not reside in the town, such notice 
may be given to the occupant, if any, and if there is no oc- 
cupant, such notice may be posted up in at least three pub- 
lic places in such town. Ibid., sec. 18. 

19. If such repairs or alterations are not made within 
thirty days after such notice given or posted up, the fire- 
wards may cause the same to be made at the expense of the 
town, and the town may recover the expense thereof of such 
owner or occupant in an action of debt, to be brought by 
the firewards in the name of the town. Ibid., sec. 19. 

20. The firewards, when in their opinion the public safety 
may be greatly endangered unless such repairs or altera- 
tions are immediately made, may limit a shorter period than 
thirty days, and notice thereof being given as aforesaid, may, 
upon neglect of the owner, make such repairs or alterations 
at the expiration of the time so limited. Ibid., sec. 20. 

21. If such building shall, in the opinion of the firewards, 
be so ruinous as to be not worth repairing, and such repairs 
are not made within sixty days after such notice, they may 
demolish the same at the expense of the town, and file with 
their clerk a particular account of such expense ; and if the 



OF FIRES AND FIREWARDS. 243 

same is not paid within five days from such filing, they may 
sell at public auction the materials of such building ; and, 
after deducting the said expense and the cost of the sale, 
shall pay the proceeds into the town treasury, to be paid 
over to the owner of the building, upon request. Ibid., 
sec. 21. 

22. The selectmen shall advance to the firewards such 
sums as may be necessary to carry this act into effect ; and 
the firewards shall in March, before the annual town meet- 
ing, render to the selectmen an exact account of their re- 
ceipts and expenditures, to be laid before the town, in which 
all penalties recovered by virtue of this chapter shall be ac- 
counted for. Ibid., sec. 22. 

23. All penalties incurred by any breach of the provis- 
ions of this chapter, or of any regulation prescribed by the 
firewards, may be recovered by action of debt, to be brought 
by the firewards in the name of the town. Such penalties 
shall be applied to the purchase of engines or instruments 
proper to be used in case of fire, or paid into the treasury of 
the town. Ibid., sec. 23. 

24. This chapter shall be in force only in such town as 
shall at a legal meeting adopt the same ; but any towns may 
adopt a part thereof only, and may exempt from the opera- 
tion of the 11th section such persons as live remote from the 
compact part thereof. Ibid., sec. 24. 

The article in the warrant for town meeting may be : 
To see if the town will adopt the provisions of chapter 
111 of the Revised Statutes, or any part thereof, and will 
exempt any persons from the operation of the eleventh sec- 
tion thereof. 

The vote of adoption and record thereof may be : 
Voted, that all the provisions of chapter 1 1 1 of the Revis- 
ed Statutes be adopted by and in force in this town ; [if any 
exception is made, add — except sections 17, 18, 19, 20 and 
21,] and that all persons be exempted from the operation of 
the eleventh section thereof who live more than one mile 
from the meeting-house. 

25. Under the provisions of sections 17, 18, 19, personal 
notice must be given to all the owners residing within the 
town, otherwise suit cannot be sustained against any one of 
the owners for any portion of the expenses incurred. 8 N. H. 
R., 338, 340. It is incumbent on the firewards to show that 



244 



OFFENCES AGAINST THE 



the requirements of the statute have been fully complied 
with; if not, they will be trespassers. It must appear that 
the building exposed the neighboring buildings to the dan- 
ger of being burned, (which is the meaning of dangerous in 
this chapter.) It is also necessary that written notice 
should be given personally to every owner or part owner 
who lives in the town, and that this notice should " contain 
a particular account of the repairs or alterations required to 
be made." When the owner or any part owner resides out 
of town, notice must be given to them by leaving a sim- 
ilar written notice with the person occupying the house, if 
any ; otherwise by posting up like notices "in at least three 
public places in the town." Ibid. 

If the firewards enter a building which is dangerous, they 
may make such repairs upon it as are necessary to secure 
it against fire, but no more ; if they make greater repairs 
the entry is illegal, and no part of the amount expended 
can be recovered. The extent of their authority is to make 
such repairs as shall be sufficient to protect the neighboring 
buildings from unnecessary exposure to risk of fire, or to en- 
sure the same end by the destruction of buildings not worth 
repairing. Ibid. 



CHAPTER 50 



OF POLICE REGULATIONS. 



1. Offences in the street. 

2. Obscene words, songs or fig- 
ures. 

3. Injuries to property. 

4. Gaming or juggling unlawful. 

5. Making noises in street. 

6. Bathing in exposed places. 

7. Leaving encumbrance in 
street. 

8. Injuries to the street. 

9. Drunkards and prostitutes. 
10. Giving liquor to idlers, &c. 



11. Buying property of pauper. 

12. Resisting police officer. 

13. Riding fast in the street. 

14. Careless driving of teams. 

15. Punishment of offenders. 

16. Complaints for offences. 

17. Proceedings on complaint. 

18. If offender does not appear. 

19. Appeal, when allowed. 

20. Parent or guardian liable. 

21 . Fines, to whom paid. 

22. Law in force every where. 



1. No person shall make any brawls or tumults in any 



POLICE OP TOWNS. 245 

street, lane, or alley or other public place, or be guilty of any 
rude, indecent or disorderly conduct, or shall insult or wan- 
tonly impede any person passing therein, or shall throw any 
stones, bricks, snowballs or dirt, or play at ball, or at any 
game at which ball is used. R. S., ch. 113, sec. 1. 

2. No person shall sing or repeat, or cause to be sung 
or repeated any lewd, obscene or profane song, or shall re- 
peat any lewd, obscene or profane words, or write or mark 
in any manner any obscene or profane word, or obscene 
or lascivious figure or representation on any building, fence, 
wall, post or other thing whatever. Ibid., sec. 2. 

3. No person shall wantonly injure or deface any build- 
ing, fence, wall, post, sign-board or sign ; or shall wantonly 
cut or injure any tree standing in any street, highway or 
public place ; or shall rob any garden or field of fruit or 
vegetables; or shall wantonly injure any trees, shrubs or 
bushes growing in any garden, field or yard ; or shall with- 
out lawful permission climb on or over any fence of any 
garden or yard. Ibid., sec. 3. 

4. No person shall use any juggling or unlawful games 
or plays, or play at any game whatever for money or other 
property. Ibid., sec. 4. 

5. No person shall, within the compact part of any town, 
fire or discharge any cannon, gun, pistol or other fire-arms, 
or beat any drum, (except by the command of a military 
officer having authority therefor,) or fire or discharge any 
rockets, squibs, crackers, or any preparation of gunpowder, 
(except by permission of a majority of the police officers or 
selectmen in writing,) or shall make any bonfire, or improp- 
erly use or expose any friction matches, or knowingly raise 
or repeat any false cry of fire. Ibid., sec. 5. 

6. No person shall, within the view of any dwelling-house 
or of any public road, street or wharf in the day time bathe 
or swim without necessity, or expose his person indecently 
in dressing or undressing, for the purpose of swimming or 
bathing, or otherwise, without necessity. Ibid., sec. 6. 

7. No person shall, without necessity, place or leave, or 
cause to be placed or left in any street, lane, alley or public 
place, for two hours by day or one hour by night, any sled, 
wheel-barrow, cart, dray, chaise or other carriage, or any box, 
crate, cask, tub or other vessel, or place or throw, or cause to 
be placed or thrown into any such street, lane, alley or public 
place any wood, lumber, manure, dirt, or other matter that 



246 OFFENCES AGAINST THE 

may impede the free passage of the same, and suffer the 
same to remain there two hours. Ibid., sec. 7. 

8. No person shall, without necessity, drive any wheel 
carriage, sled or wheel-barrow on or over the side pavements 
or walks of any street, lane or alley, or ride or lead any 
horse thereon. Ibid., sec. 8. 

9. If any person shall be found drunk in any street, alley 
or other public place, or shall be a common street-walker or 
prostitute, such person shall be punished therefor. Sec. 9. 

10. No person shall sell, give or otherwise furnish to any 
pauper, or person committed to any house of correction, 
any spirituous liquor whatever, except by permission of the 
keeper thereof, or to any spendthrift or idle person under 
guardianship, except by permission of his guardian. Ibid., 
sec. 10. 

11. No person shall purchase or receive in exchange or 
otherwise, from any pauper supported in any alms-house or 
poor-house, without permission of the overseers of the poor, 
any property whatever ; and any person so offending shall 
be punished under the provisions of this chapter, and shall 
pay treble the value of such property to said overseers. Ibid., 
sec. 11. 

12. If any person shall rescue or attempt to rescue any 
prisoner in the custody of any police officer, or shall wilfully 
and knowingly resist any police officer in the execution of 
his office, he shall be deemed guilty of a violation of this 
chapter. Ibid., sec. 12. 

13. If any person shall ride through any street or lane 
in the compact part of any town on a gallop, or at any 
swifter pace than at the rate of five miles an hour, he shall be 
deemed guilty of a violation of this chapter. Ibid., sec. 13. 

14. If any person, having the charge of any cart, dray, 
sled or other carriage, drawn by horses or oxen, shall suffer 
the same to pass through any street in the compact part of 
any town, without keeping with and carefully attending the 
same, and keeping such horses or oxen under his command, 
he shall be deemed guilty of a violation of this chapter. 
Ibid., sec. 14. 

15. Any person convicted of any offence in this chapter 
mentioned, shall be punished by fine not exceeding ten dol- 
lars nor less than one dollar, and shall pay costs of prosecu- 
tion, and stand committed until the same be paid, or by im- 
prisonment for a term not less than five days nor more than 



POLICE OF TOWNS. 247 

thirty days, in the common jail or in the bridewell of such 
town, or by confinement to hard labor the like term in the 
house of correction, at the discretion of the justice or of 
the court before whom such conviction shall be had. Ibid., 
sec. 15. 

To have a legal bridewell it should be established as such 
by a vote of the town, and a keeper of it appointed, whose 
duty it shall be to take care of the prisoners confined therein. 
The house of correction is not a bridewell, but may be voted 
to be such by the town. 

For the form of complaints and directions in the proceed- 
ings thereon see chapter 58 : " General provisions relative 
to this Title." 

16. No trial shall be had for any offence in this chapter 
mentioned, but upon complaint on oath. If the name of the 
offender is not known it shall be sufficient to insert in such 
complaint, and in the other proceedings, any description by 
which he may be known. Ibid., sec. 16. 

17. If the person charged with any offence shall not be in 
custody, the justice to whom the complaint shall be made 
shall issue a warrant in due form of law for his arrest, or a 
summons requiring him to appear at a certain time and place, 
which shall be served by delivering to him an attested copy 
of such summons. Ibid., sec. 17. 

For the proceedings in such case, see chapter 58 of this 
Title. 

18. If any person so summoned shall not appear as requir- 
ed by such summons, the justice may hear the evidence, and 
acquit or convict such person, in the same manner as if he 
were present. Ibid., sec. 18. 

19. Any person convicted of any offence mentioned in 
this chapter may appeal to the court of common pleas for 
the county, within two hours after, upon giving bond with 
sufficient sureties to the town to prosecute said appeal with 
effect, and to pay costs if he shall not be discharged at said 
court. Ibid., sec. 19. 

20. If any person so convicted shall be a minor under 
the age of fourteen years, his parent, guardian or master 
shall be liable to pay the fine and costs imposed, provided 
he shall have received due notice of the time and place of 
trial of such minor for said offence, and an action of debt 
may be maintained by the police officers in the name of the 
town therefor. Ibid., sec. 20. 



248 HOUSES OF CORRECTION. 

21. All fines and costs adjudged under this chapter shall 
be paid to the justice who imposed the same, and such fines 
shall be paid by him to the town, and the costs to the several 
persons entitled thereto. Ibid*, sec. 21. 

22. All the provisions of this chapter are now in force in 
every town in the state, whether adopted by the town or not. 
The clause which limited its operation to those towns which 
should adopt it, is repealed by the Revised Statutes. 



CHAPTER 51. 

OF HOUSES OF CORRECTION, AND THE PUNISHMENT 
OF IDLE AND DISORDERLY PERSONS. 

1. Houses of correction provid- j 4. Complaint and trial. 

ed. - J 5. Appeal, how allowed. 

2. Regulations for, how made, j 6. Offences in the night time. 

3. Idle and disorderly persons. | 7. County house or jail used. 

1. The court of common pleas for any county, or the 
inhabitants of any town at any legal meeting, may provide 
such lands, buildings and articles of any kind as may be 
necessary for a house of correction for such town or county, 
and may appoint suitable officers for the management there- 
of, and make all necessary by-laws and regulations for the 
government of the inmates, and cause the same to be en- 
forced ; but in no case shall the punishment inflicted exceed 
hard labor and such reasonable correction as a parent may 
lawfully inflict upon a refractory child, or solitary impris- 
onment not exceeding forty-eight hours at one time. R.S., 
ch. 116, sec. 1. 

2. A vote of the town establishing the house of correc- 
tion as such, is necessary. The selectmen have no author- 
ity to act in the matter except by express authority. If the 
town appoint them agents to erect buildings and prepare 
by-laws, their proceedings should be ratified by the town, 
and the vote and by-laws be entered on the town records. 



HOUSES OF CORRECTION. 249 

In some cases a building connected with the poor farm 
is established as the house of correction, and the overseer 
of the poor farm appointed keeper ; but such overseer, un- 
less expressly appointed, has no authority to act as keeper. 
The keeper is to be appointed by the town, and any vacancy 
filled like a vacancy in other town offices. 

An article in relation to the matter should be inserted in 
the warrant for town meeting. The form of the vote may 
be: 

Voted, that the dwelling-house on the town farm be es- 
tablished as the house of correction for this town. 

Voted, that the overseer of the town farm for the time 
being be the keeper of the house of correction, and have 
all the powers of such office until otherwise ordered. 

Voted, that the following by-laws and regulations be 
adopted for the government of the inmates of the house of 
correction, and the keeper thereof see that they are enforc- 
ed, viz. : 

I. Every inmate of the house of correction, when able 
to labor, shall be kept diligently employed under the di- 
rection of the keeper. 

II. If any inmate shall refuse to obey, &c. 

3. All rogues, vagabonds, lewd, idle or disorderly persons, 
any person going about begging, any person using any subtle 
craft, juggling, or unlawful game or play, any person pre- 
tending to have knowledge in physiognomy or palmistry, 
any person pretending for money to tell destinies or for- 
tunes, or discover by any spell or secret art where lost or 
stolen goods may be found ; any common piper, fiddler, 
runaway, stubborn servant or child, common drunkard, 
night-walker, pilferer, or person wanton and lascivious in 
speech or behavior ; any common railer or brawler, and any 
person who neglects his employment, mis-spends his earn- 
ings, and does not provide properly for the support of him- 
self and family, may be sent to the house of correction in 
the town or county in which such offence is committed, 
and for want of such house of correction the common jail 
of the county may be used for that purpose. Ibid., sec. 2. 

4. In any such case, complaint in writing, under oath, 
shall be made to some justice of the peace, who may there- 
upon issue a warrant under his hand and seal, and cause 
the offender to be brought before him ; and if upon exam- 
ination the complaint shall be sustained, said justice may 



250 HOUSES OF CORRECTION. 

sentence the offender to confinement and hard labor in the 
house of correction in such town or county for a term not 
exceeding six months. Ibid., sec. 3. 

For the mode of proceeding, see ch. 58, of this Title. 

5. Any person convicted and sentenced as aforesaid may 
appeal to the next court of common pleas for the county, 
by recognizing with sufficient surety or sureties, before the 
justice, in such reasonable sum as he may order, condition- 
ed that the appellant shall enter and prosecute the appeal 
with effect, and abide the order of the court thereon, and 
in the mean time keep the peace and be of good behavior 
toward all the citizens of the state ; and a commission of 
the like offence by the appellant before a decision is had on 
such appeal shall be deemed to be a breach of the condition 
of the recognizance. Ibid., sec. 4. 

6. If any person shall be found committing either of said 
offences in any public street or road in the night time, he 
may be apprehended by any magistrate, constable or watch- 
man, or by any person by order of such officer, and kept in 
custody in some convenient place, not exceeding twenty- 
four hours, during which time he shall be carried before 
some justice of the peace, there to be prosecuted or dis- 
charged according to law. Ibid., sec. 5. 

A complaint in writing on oath should be made as soon 
as may be ; without a complaint made within the twenty- 
four hours the prisoner must be discharged. 

7. When there is no house of correction in any town, 
the county house of correction may be used instead there- 
of; if there be neither, then the common jail of the county 
shall be used as such house of correction. R. S., ch. 226, 
sec. 11. 

In this case the court of common pleas should make 
an order, making the jail the county house of correction, 
and appoint the jailer to be keeper thereof. 12 Mass. R., 
356. 



251 



CHAPTER 52 



OF POLICE OFFICERS, CONSTABLES AND WATCHMEN. 



9. Fines, how remitted. 

10. Police act, when in force. 

11. Watchmen appointed. 

12. Powers of watchmen. 

13. Power in night time. 

14. Offenders to be detained. 

15. Powers of constables. 



1. Police officers, how chosen. 

2. Vacancies, how filled. 

3. Powers and fees. 

4. To arrest offenders on view. 

5. On arrest in night time. 
C. Confinement of prisoner. 

7. Regulation for streets. 

8. To be approved by town. 

1. Police officers, not exceeding seven in number, shall 
be appointed by the selectmen of each town in which this 
chapter may be in force, by writing under their hands, and 
shall be qualified by taking the oath of office, and causing 
the said appointment and the certificate of such oath written 
thereon, to be recorded by the town-clerk ; and may be 
removed at the pleasure of the selectmen. R. S., ch. 114, 
sec. I. 

2. It shall be duty of the selectmen to make the said ap- 
pointments in the month of March; but if a vacancy shall 
occur from any cause, or if such appointment shall not have 
been made in March, the selectmen may appoint at anytime 
afterwards. Ibid., sec. 2. 

3. Police officers shall hold their office until the last day of 
the next March, and shall be, by virtue of said appointment, 
constables and conservators of the peace, and shall receive 
such compensation as shall be voted by the town, and the 
same fees as constables. Ibid., sec. 3. 

To resist a police officer, or rescue a prisoner from him, 
is an offence against the police of towns. See ch. 50, sec. 
12 and 15. In aggravated cases, however, the offence may 
be punished by fine and imprisonment in the common jail, 
or by confinement to hard labor in the state prison, accord- 
ing to the character of the offence with which the person is 
charged. R. #., ch. 217. 

4. Any police officer, upon view of any offence commit- 
ted against the provisions of this chapter, may arrest the 
offender and forthwith carry him before a justice of the 
peace, to answer a complaint therefor, and the oath of such 



252 POLICE OFFICERS, CONSTABLES 

police officer shall be sufficient evidence of such offence, 
unless invalidated by other evidence. Ibid., sec. 4. 

This does not dispense, however, with the necessity of 
making a complaint in writing as soon as may be. 

5. If any police officer shall arrest any such offender be- 
tween sunset and sunrise, or shall arrest any person for being 
found drunk contrary to the provisions of this chapter, he 
may commit such person to the common jail, or the bride- 
well or house of correction, or otherwise retain him in safe 
custody, not exceeding twenty-four hours, within which time 
he shall be discharged or taken before a justice of the peace, 
to answer for the offence. Ibid., sec. 5. 

For the meaning of " bridewell," see chapter 50, sec. 15. 

6. The keeper of such jail, bridewell or house of correc- 
tion, shall, upon the verbal request of any police officer, re- 
ceive and detain in custody every person so arrested and 
presented by him, not exceeding twenty-four hours, unless 
sooner called for by the same or some other police officer. 
Ibid., sec. 6. 

During this time a complaint in writing on oath should 
be made before some, justice, on which he should be arrest- 
ed for examination. 

7. The police officers of any town may make such regu- 
lations as they may deem expedient for the stands of hacks, 
drays and carts in any street, lane or alley ; and for the 
height and position of any awning, shade or fixture in front 
of or near any building ; and respecting any obstruction in 
any street, lane or alley, the smoking of any cigar or pipe 
therein, or in any stable or other out buildings ; and every 
violation of such regulations may be proceeded against and 
punished in the same manner as other offences mentioned 
in the preceding chapter. Ibid., sec. 7. 

The form of such regulations may be similar to those of 
firewards in chapter 49. 

8. No regulation made by such police officers shall take 
effect until the same shall be approved by the selectmen of 
the town, and recorded with such approbation by the town- 
clerk, and published a reasonable time in one or more news- 
papers printed in the town. Ibid., sec. 8. 

The approval of the selectmen may be written under the 
regulations, as follows : 



AND WATCHMEN. 253 



We hereby approve of the above police regulations estab- 
lished by the police officers of this town. 

A. B. \ Selectmen 
C. D. } of 
% E. F. j N . 

9. The selectmen may remit fines imposed for violations 
of this chapter and costs, and discharge offenders from im- 
prisonment, and the town shall be liable for the prison 
charges in case of the offender's inability. Ibid., sec. 9. 

10. This chapter shall be in force in all towns which 
have at any legal meeting adopted the provisions thereof, 
and in all towns in which any of the provisions of an act 
entitled " An act to establish a sy stem of police for the town 
of Portsmouth, and for other purposes" passed June 23, 
1823, are in force. Ibid., sec. 10. 

11. The selectmen of any town, being authorized by 
vote of the town, may appoint watchmen for performing a 
walking night watch, and fix their stations and limits, pre- 
scribe their duties, and contract for and pay them a reason- 
able compensation for their services. R. S., ch. 1 15, sec. 1. 

12. They shall be appointed and qualified in the same 
manner, and shall have, while on duty, the same powers as 
police officers. Ibid., sec. 2. See sections 1 and 15. 

13. Every watchman may arrest any person whom he shall 
find committing any kind of disorder or disturbance, or any 
crime, or any offence against the police of towns, or such 
as are strolling about the streets at unseasonable hours, who 
refuse to give an account, or may reasonably be suspected 
of giving a false account of their business or design, or who 
can give no account of the occasion of their being abroad. 
Ibid., sec. 3. 

14. Every person so arrested may be committed, detained 
and proceeded against in the manner provided by the chap- 
ter relating to the police of towns, in the case of offences 
prohibited thereby. Ibid., sec. 4. 

15. Any constable, to whom any writ or other legal pre- 
cept may be directed by a justice of the peace, is empow- 
ered and required to serve and return the same according 
to law, and is vested with the same powers and subject to 
the same liabilities in relation thereto as sheriffs are in like 
cases. jR. 



254 POLICE OFFICERS AND CONSTABLES* 

16. The form of an appointment may be : 

By virtue of the authority in us vested by law, we, the 
subscribers, selectmen of the town of N., hereby appoint 
A. B., C. D. and E. F. to be police officers of said town for 
the year ensuing ; and upon taking the oath'of office there- 
for, and causing this appointment and the certificate of 
such oath written thereon to be recorded by the town-clerk, 
they are to possess all the powers appertaining to the office 
of a police officer. 

Given under our hands, this twentieth day of March, 1843 

N. L. i Selectmen 
M. N. } of 
S. P. j N . 

The oath of office is the one required to be taken by all 
town officers. The form of the certificate may be : 

H ss., March 20, 1843. Then appearing the said 

A. B., C. D. and E. F., severally made oath that they would 
faithfully and impartially discharge and perform all the du- 
ties incumbent upon them respectively, as police officers of 
the town of N., according to the best of their abilities, agree- 
ably to the rules and regulations of the constitution and laws 
of this state. Before me, 

A. R. S., Justice of the Peace. 

This certificate is to be written on the appointment itself, 
and the whole recorded by the town-clerk, and attested — 

A true copy. Attest : F. M., Toion-Clerk. 

The form of a removal of a police officer may be : 

To A. B., of C, one of the Police Officers of said toion. 

Whereas the public good requires that you should no 
longer hold or serve in the office of a police officer of this 
town, you are hereby removed therefrom, and will cease 
hereafter to perform any act or duty therein. 

Given under our hands, at N., this first day of July, 1843. 

N. L. ) Selectmen 
M. N. } of 

S. P. j N . 

This should be served on the person removed, by giving 
to him the original and keeping a certified copy, on which 
the return of service should be made. The whole should 
then be recorded by the town-clerk. No person can act 



TAVERNERS AND RETAILERS. 255 

legally as a police officer until his appointment is recorded, 
nor after service of notice of removal. 

17. The sale of the office of constable to the highest bid- 
der is contrary to sound policy — 2 N. H. R., 517 ; and the 
choice in such case would probably, as in the case of col- 
lectors of taxes, be illegal and void. 7 N. H. J2., 131. 



CHAPTER 53. 



OF LICENSED TAVERNERS AND RETAILERS. 



1. Taverners to be licensed. 

2. Taverners, how furnished. 

3. Taverners not to suffer tip- 
pling. 

4. Taverner's license, how re- 

voked. 

5. Retailers may be licensed. 

6. Selling spirit, penalty for. 

7. Fee for recording license. 



8. Justice may bind over offend- 
er. 

9. Form of taverner's license. 

10. Form of retailer's license. 

1 1 . Complaint against ta verner, to 
have license revoked. 

12. Form of revocation. 

13. Effect of taverner's license. 

14 . Unlicensed tavern illegal. 



1. The selectmen on application may license any suitable 
person, of good moral character, to exercise the business of 
a taverner in such town. Such license shall designate the 
house where such tavern shall be kept, and being first re- 
corded by the town-clerk shall be in force as to such house, 
and no other, for one year only ; but such license shall not 
authorize the sale of wine and spirituous liquors, unless ex- 
pressly authorized therein. R. S., ch. 117, sec. 1. 

2. Every licensed taverner shall at all times be furnished, 
at the house designated in his license, with suitable provis- 
ions and accommodations for travellers, their cattle and 
horses; and if any person so licensed shall not be so fur- 
nished, he shall forfeit the sum of five dollars, to be recov- 
ered by any person suing for the same. Ibid., sec. 2. 

3. If any licensed taverner shall permit any riotous, dis- 
orderly or irregular conduct in or about his house or build- 
ings, or permit any person upon the Lord's day to remain 
drinking intoxicating liquors therein, or at any other time 



256 TAVERNERS AND RETAILERS. 

permit any person to remain therein drinking to excess, or 
permit any person to play at cards, dice or billiards, or at 
any bowling alley, or at any game in or about his house, yards 
or buildings, he shall be punished by fine not exceeding 
twenty dollars. Ibid., sec. 3. 

4. If any licensed taverner shall be destitute of any of 
the provisions or accommodations aforesaid, or shall permit 
in or about his house any conduct forbidden by this chap- 
ter, the selectmen on complaint shall notify the parties in- 
terested, and hear and examine all evidence in relation to 
the same ; and if they shall see cause shall forthwith revoke 
such taverner's license ; and the said revocation being re- 
corded by the town-clerk, and notice thereof given to said 
taverner, such license shall be void. Ibid., sec. 4. 

5. The selectmen on application may license any retailer 
to sell wine and spirituous liquors in any quantity not less 
than one pint, to be sold, delivered and carried away. Such 
license shall designate the place of sale, and shall be record- 
ed, and in force in the same manner and for the same time 
as a taverner's license. Ibid., sec. 5. 

6. If any person, not being a licensed taverner or retail- 
er, shall sell any spirituous liquor, or wine mixed or other- 
wise, in any quantity, or if any retailer shall sell any 
spirituous liquors or wine to be drank in his store or build- 
ings, he shall on conviction be punished by fine not exceed- 
ing fifty dollars, nor less than twenty dollars. Ibid., sec. 6. 

7. The town-clerk shall be entitled to a fee of twenty 
cents for recording each taverner's or retailer's license. 
Ibid., sec. 7. 

8. Every justice of the peace, upon complaint of any 
violation of the sixth section of this chapter, shall issue his 
warrant for the arrest of the person complained against ; 
and if upon examination he shall be of opinion that he is 
guilty, he shall order such offender to recognize in a sum 
not less than fifty dollars nor more than a hundred dollars, 
to appear at the next court of common pleas for such 
county, and abide the order of said court, and stand com- 
mitted till such order is complied with. Ibid., sec. S. 

9. The form of a taverner's license, under sec. l,may 
be: 

The subscribers, selectmen of the town of N.,do hereby 
license and authorize A. L., being a person of good moral 



TAVERNERS AND RETAILERS. 257 

character, to exercise the business of a taverner in said 
town, in the house by him now occupied, and no other, for 
the term of one year from this date. 

Given under our hands at N., this first day of April, 1843. 

L. B. \ Selectmen 
M. L. \ of 
S. M.) N . 

10. The form of a retailer's license, under sec. 5, may 
be: 

We, the subscribers, selectmen of the town of N., here- 
by license and authorize A. B., of said N.,to sell wine and 
spirituous liquors in the store now occupied by him, in any 
quantity not less than one pint, to be sold, delivered and 
carried away therefrom, for the term of one year from this 
date. 

Given under our hands, this first day of April, 1843. 

N. L., &c, Selectmen of N. 

11. The form of a complaint against a taverner, to pro- 
cure the revocation of his license, may be : 

To the Selectmen of the Town of TV., in the County of H. 

Respectfully complain the subscribers, citizens of said 
town, that A. L., of said N., a licensed taverner therein, 
not regarding his duty as such licensed taverner, nor the 
law in such case made and provided, on the tenth day of 
May instant, being the Lord's day, did permit C. D. and 
L. B. to remain in the house wherein he was and is licensed 
to exercise the business of a taverner in said N., drinking 
intoxicating liquors therein, and on divers other Lord's 
days has been guilty of a like offence, all which is injurious 
to the morals and well being of the community and against 
the peace and dignity of the state. Wherefore we pray 
you to cause the said A. L. to be notified thereof, and a 
hearing thereon to be had, and that the license of the said 
A. L. may be revoked, and he dealt with further according 
to law. D. B. 

B. W. 

On this complaint the selectmen should appoint a day of 
hearing, notify the taverner and the complainants thereof, 
and proceed to an examination of the case. 



258 TAVERNERS AND RETAILERS. 

12. The form of a revocation of a license may be : 
To A. L., of N. 

Whereas complaint has been made to us, the subscribers, 
selectmen of said town, that you, being a licensed taverner 
in said town, have permitted persons to remain in your 
house on the Lord's day, drinking intoxicating liquors 
therein, contrary to law and to your duty as a licensed tav- 
erner ; and whereas we have appointed a day of hearing 
thereon, and caused you to be duly notified of said com- 
plaint and of said day of hearing, and have heard and ex- 
amined all the evidence in relation thereto ; and whereas 
we are satisfied that said complaint is true, we hereby re- 
voke the license which was heretofore granted to you, and 
declare the same to be of no force. 

Given under our hands at N., this first day of June, 1843. 

N. L. } Selectmen 

A. S. 

G.P. 



1*. ) Selectmen 
'■ of 

'. ) N . 



13. " Selectmen may grant license to keep tavern for any 
term less than one year ; even for a single day." 2 N- H. R. 
501 ; but this authority should be exercised with caution 
and only for the public good. If granted except in case of 
strong reasons of public convenience, it would be a gross 
abuse of power. 

" Selectmen have no authority to license a shop-keeper 
to keep tavern in his shop. It is said that selectmen are 
sometimes so forgetful of their duty as to license store-keep- 
ers to keep tavern, who have in fact no intention to open a 
tavern, but wish merely to avail themselves of the license 
to sell wine, mixed liquors and spirits in less quantity than 
a pint in their stores. But it ought to be generally under- 
stood that such licenses are shameful attempts to evade the 
law ; are alike disgraceful to those who give and those who 
receive them ; are utterly void for such purpose, and will 
afford no protection from the penalties of the statute to 
those who sell." 

l< A license to keep tavern in a particular house, is not a 
license to sell liquor from benches erected any where in the 
neighborhood of the house licensed. The objects of the 
statute were — in the first place, to prevent improper per- 
sons from opening taverns ; and in the next place to prevent 



SUNDAY AND RELIGIOUS MEETINGS. 



259 



taverns from becoming disorderly, and nuisances to the pub- 
lic, by placing them under the inspection of the selectmen. 
A license to keep a tavern necessarily implies the right to 
use all proper buildings for that purpose ; but inn-keepers, 
by virtue of a license to keep tavern, have no right to sell 
forbidden liquors at other places than the house licensed, 
and its appendages. A bench standing near the house, and 
an agent employed there in retailing liquor, cannot in law 
be considered a tavern in itself, or any appendage to a tav- 
ern." Such a license was held void. Ibid. 

" It is an indictable offence, under the statute, to exercise 
the business of a taverner without a license." 5 N. H. R., 
257. 

14. " Every person who sells spirits by retail without a li- 
cense is liable to the penalty in the statute, whether such 
person sells on his own account or as the agent of another." 
2 N. H. R., 505. 



CHAPTER 54 



OF SUNDAY AND RELIGIOUS MEETINGS. 



1. Labor on Sunday forbidden. 

2. Disturbance in meetinghouse. 

3. Penalty for such offences. 

4. Power and duty of officers. 

5. Who are liable for penalty. 

6. Disturber of meeting remov- 
ed. 



7. Penalty for offence. 

8. Offender to recognize. 

9. Religious meetings protected. 

10. Penalty for offence. 

11. Disturbance at, penalty. 

12. Offender apprehended. 

13. Prosecution limited. 



1. No person shall do any work, business or labor of his 
secular calling, to the disturbance of others, works of ne- 
cessity and mercy excepted, on the first day of the week, 
commonly called the Lord's day ; nor shall any person use 
any play, game or recreation on that day, or any part thereof. 
R.S.,ch. US, sec. 1. 

2. No person shall on the Lord's day, within the walls of 



260 SUNDAY AND RELIGIOUS MEETINGS. 

any house of public worship, or near the same, behave 
rudely or indecently, either in the time of public service or 
between the forenoon and afternoon services. Ibid., sec. 2. 

3. Any person offending against any provision of the 
foregoing sections of this chapter, shall forfeit a sum not 
exceeding six dollars nor less than one dollar, which shall 
be recovered by any selectman or police officer, for the use 
of the town. Ibid., sec. 3. 

4. Any selectman or police officer shall have power to 
remove any person behaving rudely or indecently in any 
meeting for public worship from the place of such meeting, 
and him detain until the close of such meeting ; and the 
same right to command assistance as sheriffs have, and may 
prosecute for all violations of the preceding sections of this 
chapter. Ibid., sec. 4. 

5. Parents, masters or guardians shall be liable respect- 
ively for all forfeitures incurred by the children, wards or 
servants under their care ; and a warrant of distress or ex- 
ecution maybe issued therefor. Ibid., sec. 5. 

6. If any person shall disturb any religious meeting, by 
speaking in the same so as to interrupt or prevent the stated 
and orderly proceedings and exercises of such meeting, or 
shall make any disturbance while the people are assembling 
at or leaving their place of worship, and shall not desist 
therefrom when requested, he may be removed from such 
meeting or place of worship by any individual. Ibid., sec. 6. 

7. Any person so offending shall be fined not less than 
one dollar nor more than ten dollars, and may be required 
to recognize with sufficient sureties in a sum not less than 
fifty dollars, to appear at the court of common pleas next 
to be holden in said county, and to abide the order of said 
court, and in the mean time to be of good behavior. Ibid., 
sec. 7. 

8. If such recognizance is forfeited said court may re- 
quire such offender to recognize with sufficient sureties in a 
sum not exceeding two hundred dollars, to appear at the 
next term of said court, and to abide the order thereof; and 
in the mean time to be of good behavior, and so from term 
to term, as may be ordered by said court, so long as such 
forfeiture shall be incurred. Ibid., sec. 8. 

9. No person shall keep any shop, tent, booth, wagon or car- 
riage for the sale of, or shall sell, give or expose to sale, any 
spirituous or intoxicating liquors, goods or merchandize of 



SUNDAY AND RELIGIOUS MEETINGS. 261 

any kind, within two miles of any public assembly conven- 
ed for the purpose of religious worship ; but this shall not be 
construed to prevent any person from selling merchandize 
at the shop or store where he usually transacts business, nor 
from selling any liquors in any place where he shall have 
received a license therefor before the appointment of such 
religious meeting, nor to prevent any pedlar from selling his 
goods to any person at the usual place of business or resi- 
dence of such person. Ibid., sec. 9. 

10. If any person shall be guilty of a breach of the pre- 
ceding section, upon conviction thereof before any justice 
of the peace he shall be fined not exceeding ten dollars, or 
committed to the house of correction not exceeding thirty 
days, or may be sentenced both said punishments. Ibid., 
sec. 10. 

11. If any person shall be guilty of noisy, rude or inde- 
cent behavior, of exhibiting shows or plays, or promoting 
or engaging in horse racing or gambling at or near any 
such religious meeting, so as to interrupt or disturb the 
same, upon conviction thereof before any justice of the 
peace he shall be fined not exceeding ten dollors ; or, if the 
offence be of an aggravated nature, he maybe held to recog- 
nize with sufficient sureties, to appear at the court of com- 
mon pleas next to be holden in the same county ; and upon 
conviction before such court he shall be fined not exceed- 
ing fifty dollars or imprisoned in the common jail not exceed- 
ing ninety days. Ibid., sec. 11. 

12. Any person, upon view of any offence described in 
this chapter, may apprehend such offender and bring him 
before some justice of the peace, who upon complaint un- 
der oath shall issue his warrant, cause such offender to be 
arrested, and proceed to a hearing of such complaint. Ibid., 
sec. 12. 

13. No prosecution for any violation of the provisions of 
this chapter shall be sustained, unless commenced within 
thirty days after the commission of such offence. Ibid., 
sec. 13. 



262 



CHAPTER 55. 



OF THE SAFE KEEPING OF GUN-POWDER. 

1. Search for gun-powder made. I 6. Powder in such case forfeited. 

2. Penalty for keeping illegally. 7. Not to be carried about for 

3. Retailing of powder regulat- . sale. 



ed. 

4. How transported in villages. 

5. Not allowed to stand in street. 



8. Keeper of magazine, duties. 

9. Master of vessel, duties. 
10. 



1. Any two police officers, firewards or selectmen, may 
search any building in the compact part of any town, and 
any vessel lying in any port in this state, in which they 
have cause to suspect that gun-powder, in a greater quantity 
than twenty-five pounds, may be kept or stored ; and in case 
a greater quantity shall be found, the said police officers, fire- 
wards or selectmen shall seize the same as forfeited. R. S., 
ck. 112, sec. 1. 

For the proceedings in case of forfeiture, see the Revised 
Statutes, ch. 212. 

2. Any person who shall keep or knowingly suffer any 
quantity of gun-powder, greater than twenty-five pounds, to 
be kept or stored in any such building or vessel, or aid or assist 
in keeping or storing the same, or shall know' that the same 
is so stored or kept, and shall not forthwith inform one of the 
police officers, firewards or selectmen thereof, shali forfeit a 
sum not more than five dollars nor less than one dollar, for 
every day the same shall be so kept or stored. Ibid., sec. % 

When a sum of money is forfeited it must be sued for as 
in section 10. 

3. Gun-powder kept for retail in quantities less than 
twenty-five pounds, shall at all times be kept in a cannister 
of tin or other metal, securely covered from fire ; or if the 
same is kept in a cask, or wooden or combustible vessel, 
the said cask or vessel shall be enveloped in a close leathern 
bag ; and if any person shall keep any gun-powder for re- 
tail in any other manner than as aforesaid, he shall forfeit a 
sum not more than five dollars nor less than one dollar, for 
every day the same shall be so kept. Ibid., sec. 3. 

4. No gun-powder shall be transported through the com- 



SAFE KEEPING OF GUN-POWDER. 263 

pact part of any town or village in greater quantity than one 
hundred pounds, nor unless the casks containing the same 
be enveloped in close leathern bags, unless it shall be con- 
veyed in a closely covered carriage ; and if any person shall 
transport any greater quantity of gun-powder, or in any other 
manner than is herein before expressed, he shall forfeit a 
sum not exceeding fifty dollars nor less than fifteen dollars. 
Ibid., sec. 4. 

5. No carriage, upon which there shall be a greater quan- 
tity than twenty-five pounds of gun-powder, shall be permit- 
ted to stand in any building, or near any dwelling-house, 
store or other building, in the compact part of any town ; 
and any person who shall stop, place or leave any such car- 
riage as aforesaid, shall forfeit a sum not exceeding fifty dol- 
lars nor less than fifteen dollars. Ibid., sec. 5. 

6. In case any gun-powder shall be found upon any car- 
riage contrary to the provisions of this chapter, any police 
officer, fireward or selectman may seize the same as forfeit- 
ed. Ibid., sec. 6. 

For the mode of proceeding with forfeited property, see 
Revised Statutes, chapter 212. 

7. If any person shall carry from town to town, or from 
place to place, any gun-powder for the purpose of peddling, 
or selling it by retail, in quantities less than twenty-five 
pounds, or shall sell or offer to sell by retail any gun-pow- 
der in any highway or street, or on any wharf, parade or 
common, or if any person shall sell or deal out any gun- 
powder in the night time, between sunset and sunrise, he 
shall forfeit for each offence a sum not more than five dollars 
nor less than one dollar. Ibid., sec. 7. 

8. When any magazine for gun-powder shall be provid- 
ed by any town for public use, a keeper of such maga- 
zine shall be annually chosen, who shall receive into and 
deliver out of said magazine, all gun-powder brought or de- 
posited there, and .account for the same; and he shall re- 
ceive for his services at the rate of twenty cents for a hun- 
dred pounds for all quantities above ten pounds, and for less 
quantities one cent a pound. Ibid., sec. 8. 

9. The master of any merchant ship or vessel bringing 
gun-powder into Portsmouth in quantity greater than 
twenty-five pounds, shall deposit in the public magazine all 
gun-powder so brought by him, within forty-eight hours ; 



264 NUISANCES AND CONTAGIOUS DISEASES. 

and if he shall neglect so to deposit the same he shall for- 
feit the sum of one hundred and fifty dollars. Ibid., sec. 9. 
10. All penalties and forfeitures incurred by any violation 
of this chapter shall be sued for and recovered by action of 
debt, to be brought by the police officers, firewards or select- 
men, in the name of the town, and shall be expended in the 
purchase of such articles as are proper to use in the extin- 
guishment of fires. Ibid., sec. 10. 



CHAPTER 56 



OF NUISANCES AND CONTAGIOl/S DISEASES. 



1. Regulations by health officers. 

2. Search warrant for nuisance. 

3. Nuisances, how removed. 

4. Assistants may be employed. 

5. Removal without notice. 

6. Expense paid by owners. 

7. Leaving offensive matter. 

8. Slaughter houses, &c, regu- 
lated. 

9. Privies and styes regulated. 



10. Nuisance in street removed. 

11. Compensation of health offi- 
cers. 

12. Vaccinating agent chosen. 

13. Infected persons removed. 

14. Inoculation prohibited. 

15. Pest houses, how licensed. 

16. Persons in pest houses, duty. 

17. Inoculation permitted, when. 



1. The health officers may make regulations for the pre- 
vention and removal of nuisances, and such other regula- 
tions relating to the public health as in their judgment the 
health and safety of the people may require, which shall 
take effect when they shall be approved by the selectmen, 
recorded with such approbation by the town-clerk, and pub- 
lished in some newspaper printed in the town, or copies 
thereof posted in two or more public places in the town. 
And any person wilfully violating such regulations shall in- 
cur a penalty of ten dollars, to be recovered by the health 
officers in the name of the town. R. $., ch. 119, sec. 1. 

The form of such regulations may be similar to those es- 
tablished by firewards. 



NUISANCES AND CONTAGIOUS DISEASES. 265 

2. Health officers, and each of them, shall enquire into 
all nuisances and other causes of danger to the public 
health ; and whenever they shall know, or have cause to 
suspect, that any nuisance or other thing injurious to the 
public health is in any building, vessel or enclosure, they 
shall make complaint under oath to some justice of the 
peace, who shall issue a warrant directed to them, to search 
such building, vessel or enclosure ; and they may, by virtue 
thereof, in the day time forcibly enter therein and make 
such search. Ibid., sec. 2. 

The form of the complaint and warrant in such case may 
be : 

To A. B., Esquire, one of the Justices of the Peace in and 
for the County of Rockingham. 

Complains C. D.,of N., in said county, one of the health 
officers of said town, and gives said justice to understand 
that he has cause to suspect that there is a nuisance in or 
under the stable of D. P., on Broad-street, in said town; 
and that said nuisance may be injurious to the public health : 
wherefore the said C. D. prays that a warrant may issue au- 
thorizing him to search said building, according to the 
statute in such cases made and provided. C. D. 

Rockingham ss., July 1, 1843. Then the said C. D. 
made oath that the foregoing complaint by him signed is in 
his belief true. Before me, 

B. B., Justice of the Peace. 

STATE OF NEW-HAMPSHIRE. 
Rockingham ss. To C. D., one of the Health Officers of 
j^^-JB^\ the town of N., in said County. 

©llJlBpV Whereas C. D.,of N., one of the health officers 
^^ji^0^ of said N., has exhibited to me, B. B., one of 
the justices of the peace in and for said county, his aforesaid 
complaint on oath : We therefore authorize and require you, 
with necessary and proper assistance, to enter in the day 
time into said stable of D. P., in said town, and there make 
search for said nuisance, and to proceed therewith accord- 
ing to the statute in such case made and provided. 

Herein fail not. Given under my hand and seal, this first 
day of July, in the year eighteen hundred forty-three. 

B. B., Justice of the Peace. 

3. The health officers may give written notice to the 



266 NUISANCES AND CONTAGIOUS DISEASES. 

owner or occupier of any building, vessel or enclosure, to 
remove or destroy any nuisance or other thing deemed by 
them, on examination, to be injurious to the public health, 
within a certain time limited therein ; and in case such 
owner or occupier, the said notice having been given to him 
or left at his usual place of abode, shall neglect to comply 
therewith, the said health officers may forcibly enter such 
building, vessel or enclosure, and cause the said nuisance, 
or other thing aforesaid, to be removed or destroyed. Ibid., 
sec. 3. 

The form of such notice may be : 

To A. B., of C. 

Whereas a large quantity of offal and animal matter, by 
you collected in the hog yard under your barn in said C. is 
deemed by us on examination to be injurious to the public 
health, you are hereby required and ordered to remove the 
same therefrom within two days from the date hereof. 

Given under our hands, at C., this first day of July, 1843. 
C. D., &c, Selectmen of C. 

4. They may employ such assistants and laborers as may 
be necessary, and if resisted shall have the same powers as 
sheriffs have by law to command assistance; and any per- 
son wilfully resisting them, or their assistants or laborers, in 
making such search, or removing any such nuisance or other 
thing aforesaid, shall on conviction be punished by impris- 
onment not exceeding twelve months, or by fine not exceed- 
ing five hundred dollars. Ibid., sec. 4. 

5. When the owner of any building, vessel or enclosure 
shall be unknown to the health officers, or shall not reside 
in town and the same shall be unoccupied, or the occupant 
is, in their opinion, unable to remove the same, they may, 
without any previous notice, immediately cause any nui- 
sance or other thing, by them deemed injurious to the pub- 
lic health, found therein, to be removed or destroyed. Ibid., 
sec. 5. 

6. The owner or occupier of any building, vessel or enclo- 
sure shall be liable to pay the expense of the removal or 
destruction of any such nuisance or other thing as aforesaid, 
including the fees of the health officers who order or cause 
the same to be removed ; and the same may be recovered by 
action, to be brought by the health officers in the name of 
the town. Ibid., sec. 6. 



NUISANCES AND CONTAGIOUS DISEASES. 267 

7. If any person shall place or leave, or cause to be placed 
or left, in or near any highway, street, alley or public place, 
or wharf, or in any water where the current will not remove 
the same, any substance liable to become putrid, or offensive 
or injurious to the public health, he shall incur a penalty of 
not more than ten dollars nor less than one dollar, to be 
recovered by the health officers in the name of the town. 
Ibid., sec. 7. 

8. If any person shall use or occupy any building in the 
compact part of any town, for a slaughter-house, or house 
for trying tallow, or for currying leather, or for the deposit 
of green pelts or skins, without permission in writing of 
the health officers, he shall incur a penalty of ten dollars for 
each month in which the said building shall be so occupied. 
Ibid., sec. 8. 

9. If any person shall erect or continue any house of 
easement or privy, within forty feet of any street, or of the 
dwelling, shop or well of any other person, unless the same 
is vaulted six feet deep, and sufficiently secured and en- 
closed, or shall erect or keep any pen or stye for swine, so 
near the dwelling-house of another as, in the judgment of 
the selectmen, shall be a nuisance, he shall incur a penalty 
of ten dollars, and a like penalty for each month he shall 
continue the same after due notice of such judgment. Ibid., 
sec. 9. 

10. The health officers shall cause to be removed all 
nuisances, or other things deemed by them injurious to the 
public health, found in any highway, street, alley, public 
place or wharf, or in any water where the current will not 
remove the same. Ibid., sec. 10. 

11. The health officers shall be paid a reasonable compen- 
sation from the town, and all expenses incurred by them in 
the execution of their duty shall be paid by the town ; and 
the selectmen are required to advance to them such sums as 
may be necessary, of which, and of all their receipts and 
disbursements, the health officers shall annually, before the 
annual town meeting, render an account to the selectmen, 
to belaid before the town. Ibid., sec. 11. 

12. Any town may appoint an agent for vaccination, who 
shall at all times be provided with suitable matter for com- 
municating the kine pox, and may vaccinate all persons at 
the expense of the town who have not had the small pox or 
the kine pox, and shall receive ,a suitable compensation 



268 NUISANCES AND CONTAGIOUS DISEASES. 

therefor, to be paid by the selectmen. Such agent may be 
appointed by the selectmen of the town, whenever in their 
opinion the health of the inhabitants of said town, by rea- 
son of the spreading of the small pox, shall require. R. S., 
ch. 120, sec. 1. 

The form of the appointment in such case may be similar 
to that of police officers. 

13. The health officers may remove any person infected 
with the small pox, the malignant cholera, or other malignant 
pestilential disease, to some suitable house to be by them 
provided for that purpose, provided the same can be done 
without endangering the life of such person ; and make 
such regulations respecting such house, and for preventing 
unnecessary communication with such persons, or their at- 
tendants, as they may think proper ; and if any person shall 
wilfully violate the same he shall forfeit the sum of fifty dol- 
lars, to be recovered by such health officers in the name of 
the town. Ibid., sec. 2. 

14. If any person shall, with intent to communicate the 
small pox, bring into this state or use any infectious matter, 
or shall inoculate himself or any other person with the small 
pox, or be inoculated therefor, he shall incur a penalty of 
one hundred and fifty dollars, to be recovered by any per- 
son who will sue for the same, one half to his own use and 
the other half for the use of the town in which the offence is 
committed. Ibid., sec. 3. 

15. The court of common pleas, on application, may li- 
cense any physician to establish a house for inoculating per- 
sons for the small pox in any town which shall consent thereto, 
under such regulations as they may prescribe ; and such 
physician shall give bond to the county treasurer in the sum 
of three thousand dollars, conditioned that he will use every 
means and precaution in his power to prevent the spreading 
of the disease, and that he will not inoculate any person, 
nor willingly suffer any person to be inoculated, or to have 
said disease in any other place than said house, and will not 
suffer any person to depart from such house until he is ef- 
fectually cleansed, and will give to such person a certificate 
thereof under his hand. Ibid., sec. 4. 

16. If any person, having had the small pox in any li- 
censed house, or being employed therein shall leave the 
same without such certificate, or be found without the same 



SHOWS AND EXHIBITIONS. 269 

within one month afterwards, he shall incur a penalty of fifty 
dollars, to be recovered by the health officers in the name 
of the town. Ibid., sec. 5. 

17. If any person shall break out with small pox in the 
natural way, and the health officers shall judge that he may 
remain without endangering others than his own family, 
they may give license to any persons who have been expos- 
ed to the danger of taking the disease, to be inoculated and 
to remain in the same house ; and the provisions of this 
chapter, and all regulations of the health officers in relation 
to other licensed pest houses, shall apply to such house and 
its inmates. Ibid., sec. 6. 



CHAPTER 57. 

OF SHOWS AND EXHIBITIONS. 



4. Complaint and proceedings. 

5. Form of license. 



1 . Shows without license illegal. 

2. Form and fees of license. 

3. Penalty for violation. 

1. No showman, tumbler, rope-dancer, ventriloquist or 
other person shall for pay exhibit any feats of agility, or of 
horsemanship, or sleight of hand, rope-dancing or feats with 
cards, or any animals, wax figures, puppets, or show, with- 
out a license from the selectmen of the town. R. S., ch. 
125, sec. 1. 

2. Every such license shall be in writing, and shall spe- 
cify the days such person is allowed to perform or exhibit; 
and every such person shall pay for such license, for the use 
of the town, a sum not less than thirty dollars nor more than 
fifty dollars for each day such person shall perform or ex- 
hibit. Ibid., sec. 2. 

3. If any person shall violate the provisions of this chap- 
ter he shall for every such offence be punished by a fine of 
one hundred dollars, one half for the use of the town, the 
other half for the use of the complainant. Ibid., sec. 3. 

4. Any justice, on complaint of any violation of said 
provisions, may by warrant cause the offender to be arrest- 
ed, and order him to recognize with sufficient sureties for 

w * 



270 



GENERAL PROVISIONS 



his appearance at the next court of common pleas, to an- 
swer for said offence. Ibid., sec. 4. 
5. The form of such license may be : 
We, the subscribers, selectmen of the town of B., hereby 
license D. V. to exhibit his menagerie of animals within 
said town on the fourth and fifth days of July, 1843, he hav- 
ing paid to us sixty dollars therefor. 

Given under our hands, at B., this third day of July, 1843. 

A. B. ) Selectmen 
C. D. [ of 
E. F. j B . 



CHAPTER 58 



GENERAL PROVISIONS RELATING TO THIS TITLE. 



1. Fines, how recovered, &c. 

2. Penalties, how recovered,&c. 

3. Recovery by town. 

4. Trial, before whom to be. 

5. Prosecution, when brought. 

6. Computation of time. 

7. General issue pleaded. 

8. Who may be witnesses. 

9. Defendant, when committed. 

10. Costs, how to be taxed. 

11. House of correction, what is. 



12. Form of complaint. 

13. Form of warrant. 

14. Form of mittimus. 

15. Officer may require aid. 

16. Penalty for obstructing. 

17. Gaming houses illegal. 

18. Penalty for winning over $5. 

19. Penalty for winning under$5. 
'^0. Fees of justices. 

21. Fees of officers. 



1. All fines are to be recovered by information or indict- 
ment, and to be for the use of the county, if no other pro- 
vision is made. R. S., ch. 211, sees. 4, 13. 

2. All penalties and forfeitures may be recovered by ac- 
tion of debt, before a justice of the peace of the county, if 
such penalty or forfeiture do not exceed $13.33 ; otherwise 
before the court of common pleas, by any person who will 
sue for the same, unless otherwise provided by law ; and 
shall be half for the use of the county and half for the use 
of the prosecutor, unless otherwise limited by law. Ibid., 
sees. 1, 2, 5. 

3. When any part of any penalty or forfeiture is given to 
any town, the selectmen may sue therefor in the name of 
the town, which shall have the benefit and pay the expenses 



RELATING TO THIS TITLE. 271 

of such suit ; and the selectmen may remit such penalty or 
forfeiture. Ibid., sec. 11. 

4. The trial in any suit or prosecution may be before any 
justice of the county, though the town in which he lives is 
interested in the penalty. Ibid., sees. 6, 7. 

5. When any part of a fine or penalty belongs to the 
prosecutor, the prosecution may be commenced within one 
year, unless a shorter time is limited. Ibid., sec. 8. 

6. When a penalty is imposed for a neglect for any space 
of time, such neglect may be alleged to have commenced 
on any specified day, and shall be reckoned therefrom. lb., 
sec. 3. 

7. The defendant in any suit may plead the general issue, 
and give any special matter in evidence under it. Ibid., 
sec. 7. In complaints the plea is " not guilty" or " guilty." 

8. No person shall be disqualified as a witness, by reason 
of any interest in the penalty. Ibid., sec. 10. 

9. If any defendant shall refuse to perform the order of 
court, he may be committed to the common jail, until sen- 
tence is performed or he is discharged by law. Ibid., sec. 12. 

10. If the defendant is ordered to recognize, or pay a 
fine or penalty, he shall also be ordered to pay costs, or so 
much as the justice thinks proper. Ibid., sec. 14. 

11. When there is no house of correction in any town, 
the county house of correction, if any, may be used instead 
thereof; if there be neither, then the common jail of the 
county shall be used as such. R. S., ch. 228, sec. 11. 

12. The form of a complaint for a police offence, may be : 
To B. B., Esquire, one of the Justices of the Peace in and 

for the County of Hillsborough. 

Complains D. D., of N., in said county, on oath, thatN.C, 
in said county, yeoman, on the first day of July, in the year 
eighteen hundred and forty -three, at said N., was found 
drunk in a certain street in said N., called Main-street, con- 
trary to the police of said town and the statute in such case 
made and provided, and against the peace and dignity of 
the state. Wherefore your complainant prays that the said 
N. C. may be apprehended, and dealt with as justice may 
require. D. D. 

Hillsborough s$.,July 1, 1843. Then the said D. D. 
appeared and made oath that the foregoing complaint by 
him signed is in his belief true. Before me, 

B. B., Justice of the Peace. 



272 GENERAL PROVISIONS 

If the name of the offender is not known, it is necessary 
to insert instead of the name some " description by which 
he may be known. 91 The form may be — " A person whose 
name is unknown, hit who may be known by the following 
description, viz. : he was about six feet in height, stout built, 
with his left leg stiff, and wore a white hat, black coat and 
grey pantaloons." 

13. Upon such complaint the justice should issue a war- 
rant or a summons ; the former to be issued when the ob- 
ject is to arrest the body, and the latter when no arrest is 
wanted. The form of the warrant may be : 

THE STATE OF NEW-HAMPSHIRE. 
Hillsborough ss. To the Sheriff of said County, or his 
x^lH^v Deputy, or either of the Constables of the 
eSjj 8«)fj town of N., in said County. 

x ^TmJis^ X Whereas D. D., of N., in said county, has ex- 
hibited to me, B. B., one of the justices of the peace in and 
for said county, his aforesaid complaint on oath against 
N. C, of said N., yeoman : 

In the name of said state we command you to arrest the 
body of the said N. C, and bring him before me, or some 
other justice of the peace for said county, to answer to said 
complaint ; and we also command you to summon the said 
D. D., and P. L., of said N., to appear at the time and place 
of trial of said N. C, to testify what they know relative to 
said complaint. Herein fail not. 

Given under my hand and seal, this first day of July, in 
the year eighteen hundred forty-three. 

B. B., Justice of the Peace. 

The form of the summons on such complaint maybe the 
same as that of the warrant, omitting the words, " to arrest 
the body of the said N. C, and bring him before me, or 
some other justice of the peace for said county," and in- 
serting instead — to summon the said N. C. to appear before 
me, at my dwelling-house in said N., on Tuesday, the eighth 
day of July instant, at ten 6 f clock in the forenoon — . 

14. The form of the mittimus in such case may be : 
Hillsborough ss. To the Sheriff of said County, or his 

>^pip^ Deputy, or any Constable of the town of N., 
rUff ^ll'M * n sai< ^ County. 

n^^^X Whereas on the first day of July, in the year 
eighteen hundred forty-three, D. D., of N., in said county, 



RELATING TO THIS TITLE. 273 

came before me, B. B.,one of the justices of the peace in 
and for said county, and on oath complained that N. C, 
of said N., yeoman, on said first day of July, at said N., 
was found drunk in a certain street in said N., called Main 
street, contrary to the police of said town and the statute 
in such case made and provided, and against the peace and 
dignity of the state : And whereas on the same day the said 
N. C, being brought before me by virtue of a warrant is- 
sued on said complaint, and pleading not guilty to said 
complaint, and having heard the evidence on behalf of the 
said N. C, as well as on behalf of the state, it appearing 
that the said N. C. was guilty as aforesaid, it was ordered 
that he be sent to the house of correction in said N., and 
confined therein for the space of thirty days : 

You are required, in the name of said state, to take the 
body of said N. C. and him commit to the house of correc- 
tion in said N., and him deliver to the keeper thereof: and 
said keeper is ordered to receive and detain him in his cus- 
tody, and him there set to work and labor, and otherwise 
deal with as the law directs, for the term of thirty days, or 
until he be discharged by due course of law. 

Given under my hand and seal, this first day of July, in 
the year eighteen hundred forty-three. 

B. B., Justice of the Peace. 

15. Every sheriff, deputy sheriff or other officer, in the 
execution of his office for the preservation of the peace, or 
apprehending or securing any person violating the same, or 
for any other criminal matter or cause, may require suitable 
aid in the execution of his office ; and if any person when 
so required shall neglect or refuse to give such aid or as- 
sistanche shall be punished by a fine not exceeding ten dol- 
lars, for the use of the town where the offence is committed. 
R.S., ch. 178, sec. 12. 

16. If any person shall wilfully assault or obstruct any 
officer or other person duly authorized, in the service of any 
lawful process or order in any civil case, or in any criminal 
case the punishment of which is imprisonment in the com- 
mon jail, and fine, or either, or shall rescue or attempt 
to rescue any prisoner lawfully arrested in any such case, he 
shall be punished by confinement in the common jail not 
exceeding one year, and by fine not exceeding three hun- 
dred dollars. R. S.,ch. 217, sec. 5. 

17. If any person shall keep any gaming house or place, 



274 GENERAL PROVISIONS. 

and shall suffer and permit any person to play at cards, dice, 
billiards, or at any bowling alley, or any game whatever 
therein, for money, hire, gain or reward, or to bet on the 
hands or sides of such as are so playing, such person shall be 
punished by a fine not less than ten dollars, nor more than 
two hundred dollars, or by imprisonment in the county 
jail not exceeding one year. li. JS., eh. 220, sec. 3. 

18. Every person who shall be convicted of winning at 
any one time or sitting, by gaming, or by betting on the sides 
or hands of such as are gaming, any money or goods to the 
value of five dollars or more, and of receiving the same or any 
security therefor, shall forfeit to the use of the town where 
the offence shall have been committed, double the value of 
the money or goods so won and received. Ibid., sec. 4. 

19. If the money, &c, so won and received is less than 
five dollars, the penalty is not less than two dollars nor more 
than ten dollars. Ibid., sec. 5. 

20. Justices of the peace shall be allowed the following 
fees in criminal cases : 

For drawing a complaint, fifty cents ; 

For a warrant founded on a complaint for any offence, 
twenty-five cents ; 

For granting an appeal, seventeen cents ; 

For each recognizance, seventeen cents; 

For taking bail of persons committed in criminal cases, 
for each offender thirty-four cents ; 

For every examination, thirty-four cents ; 

For entry of complaint and judgment thereon, fifty cents ; 

For a warrant of commitment, and every other warrant 
except those before mentioned, fifty cents ; 

For every adjournment, 17 cents. R. S., ch. 229, sec. 2. 

21. The fees of constables and police officers shall be as 
follows : 

For the service of every writ, notice or execution, except 
writs of subpoena for witnesses, twenty-three cents ; 

For summoning witnesses, each, seventeen cents ; 

For taking bail, (to be paid by the person bailed,) seven- 
teen cents ; 

For actual travel to serve any writ, process or execution, 
to be reckoned from the place of service to the residence of 
the officer, in no case exceeding 50 miles, each mile, 5 cents ; 

For attending before justices on trials where his presence 
is required, each day, one dollar. Ibid., sec. 14. 



TITLE VIII. 



REGULATIONS CONCERNING PROPERTY. 

Chapter 59. Of mills and their repairs. 

Chapter 60. Of fences and fence-viewers. 

Chapter 61. Of common fields. 

Chapter 62. Of pounds and impounding of animals. 

Chapter 63. Of floating timber. 

Chapter 64. Of strays and lost goods. 



CHAPTER 59 



OF MILLS AND THEIR REPAIRS. 



1. Repairs in mills, how made. 

2. Application to selectmen. 

3. Contents of application. 

4. Form of application. 

5. Proceedings thereon. 

6. Form of order of notice. 

7. Notice, how given. 

8. Repairs ordered to be made. 



9. Form of such order. 

10. If not made, remedy. 

11. Mode and form of appraisal. 

12. If mill lies in two towns. 

13. Special contracts not affected. 

14. Tolls of grist mills allowed. 

15. Taking illegal tolls, penalty. 

16. What repairs may be made. 



1. All necessary repairs in any mill, mill dam or flame 
owned by joint tenants or tenants in common ; or in any 
mill dam or flume owned in severalty, when the privilege 
of the water is owned jointly or in common, shall be made 
by such owners in proportion to their respective interests 
therein. JR. S., ch. 135, sec. 1. 

2. When, in the opinion of any owner of any part or 
share of a mill, mill dam or flume, it shall be necessary 
that such mill, mill dam or flame be rebuilt or repaired, and 
the other part owners shall neglect to rebuild or repair the 
same immediately, he may apply by petition in writing to 



276 MILLS AND THEIR REPAIRS. 

the selectmen of the town in which such mill, mill dam or 
flume is situated, to appoint a time and place of hearing 
thereon. Ibid, sec. 2. 

3. Such petition shall contain a description of the prem- 
ises, of the names and shares of all persons interested 
therein who are known, and of the object of the hearing, 
and a request that such hearing may be appointed and no- 
tice thereof given according to law. Ibid., sec. 3. 

4. The form of such petition may be : 

To the Selectmen of the Town of JV., in the County of H. 

Respectfully represents A. B., of said N., that he is the 
owner of one undivided half of a certain saw-mill, with the 
dam, flume and privileges thereto belonging, situated in said 
N., and bounded thus : (here insert the description of the 
premises owned in common ;) and that the other half of 
said mill, dam, flume and privileges is owned by C. D., of 
said N. ; that said mill, dam and flume are out of repair, 
and that it is necessary that repairs thereon should be made 
immediately ; that although said repairs have been neces- 
sary for some time, and though said C. D. has been notified 
thereof, and requested to make the same, (if the fact is so) 
yet the said C. D. has neglected to cause the same to be 
made : Your petitioner requests, therefore, that you will 
appoint a time and place of hearing on this petition, and 
cause the said C. D. to be duly notified thereof, and that 
you will order the said C. D. to make his proportionate 
part of the repairs which may be necessary on said mill, 
dam and flume, in such manner and within such time as 
you may think reasonable, and to pay such portion of the 
costs as may be just, and for other relief, according to the 
statute in such cases made and provided. 

N , May 1, 1843. A. B. 

The name, residence and share of each part owner 
must be stated distinctly ; and if the owners and their 
residence are known, they should be requested to make the 
repairs before the petition is filed. Without this there will 
generally be no" neglect" If any part owner or his resi- 
dence is unknown, or if the facts are different from those 
stated in the above form, the necessary alterations therein 
should be made. It may be under oath. 

5. The selectmen shall appoint a time and place of hear- 
ing on such petition, and shall notify all persons interested 



MILLS AND THEIR REPAIRS. 277 

therein, by causing a true and attested copy of such notice to 
be given in hand to or left at the usual place of abode of every 
such person, at least fourteen days before the day of hear- 
ing, if such person is known and is an inhabitant of this 
state, otherwise by causing such notice to be posted up in 
two or more public places in the town, twenty days before 
the meeting, and published in some newspaper printed in 
the same county, if any there be, if not in some adjoining 
county, three weeks successively, the last publication to be 
not less than ten days before such day of meeting. R. S., 
ch. 135, sec. 4. 

6. The form of the order of notice may be as follows, to 
be made on the petition itself: 

Upon the foregoing petition it is ordered that a hearing 
thereon be had at the mill described in said petition, on the 
first day of June next, at nine o'clock in the forenoon, and 
that the said A. B. notify the said C. D., by causing a true 
and attested copy of the foregoing petition and of this order 
of notice thereon to be given in hand to or left at the usual 
place of abode of the said C. D., fourteen days at least 
before said day of hearing. 

Given under our hands, this first day of May, 1843. 

N. L. \ Selectmen 
P.P. V of 
D.T. ) N . 

If any one of the owners is unknown, or is not an inhab- 
itant of the state, the order of notice should be different. 
In such case, after the words, " day of hearing," at the 
end of the notice, add — and by causing such notice to be 
posted up in two or more public places in said town of N., 
tioenty days before said day of hearing, and published in 
the , printed in said county, three weeks succes- 

sively, the last publication to be ten days at least before said 
day of hearing. 

If no one of the owners who is known resides in the 
state, omit the words, " be given in hand to or left at the 
usual place of abode of the said C. D., fourteen days be- 
fore said day of hearing," and also the words at the be- 
ginning of the second form — " and by causing such notice 
to." — If the owner is unknown or out of the state, no per- 
sonal notice is necessary, and the order should not require 
it. Such notice should be served by some officer or disin- 
x 



278 MILLS AND THEIR REPAIRS. 

terested person — not by one who is interested in the peti- 
tion. 

7. If any person interested is a minor, married woman, 
tenant for life or years, mortgager or mortgagee in posses- 
sion, or person under guardianship, the guardian of such 
minor, the husband of such married woman, such tenant, 
mortgager or mortgagee in possession, or guardian, shall be 
notified as aforesaid, and shall vote and contribute as if per- 
sonally interested ; and any sum so contributed and paid 
shall be a lien upon such estate and a legal charge against 
the person for whom the same is paid. R. S., ch. 135, 
sec. 5. 

8. If upon any such hearing the selectmen or a majority of 
them shall be of opinion that such mill, dam or flume ought 
to be repaired or rebuilt, they shall order such delinquent 
part owner to repair or rebuild his part or share thereof, in 
such manner and within such time as they shall think rea- 
sonable, and to pay such portion of the costs as they shall 
award ; but no order to rebuild shall issue unless assented 
to by the owners of one half at least of such mill, mill dam 
or flume. Ibid., sec. 6. 

9. The order to repair on such hearing, if the selectmen 
order repairs to be made, may be attached to the petition 
and order of notice, (as in the case of laying out highways) 
and the form may be : 

Upon the foregoing petition the subscribers, selectmen of 
the town of N., having caused notice to be given as afore- 
said to all the owners of the mill, mill dam and flume de- 
scribed in said petition, to appear at said mill on the first 
day of June, eighteen hundred forty-three, at nine o'clock 
in the forenoon, upon the hearing of said petition ; and 
having met at said time and place, and fully heard all par- 
ties who attended and all evidence offered in relation to the 
subject of said petition, and having made an examination 
of said premises, we are of opinion that said mill, dam and 
flume are owned in the manner set forth in the petition, and 
that the following repairs are necessary to be made, viz. : 
(Here insert what repairs are necessary, at length ;) and 
that said C. D. has neglected to make the- same. We 
therefore order that one half of all said repairs be made by 
the said C. D., within thirty days from the date hereof, in a 
good, substantial manner, and that said C. D, also pay the 



MILLS AND THEIR REPAIRS. 279 

sum of , being one half of the costs of said petition 

and hearing, to the said A. B. 

Given under our hands, this first day of June, 1843. 

N. L. 1 Selectmen 



IN. L. ) Select 
P. P. of 
D. T. j N 



10. If any such delinquent shall not comply with such 
order, any one or more of the other part owners may rebuild 
or repair his part or share of such mill, mill dam or flume, 
the cost of which shall be appraised by the selectmen afore- 
said, and certified by them together with their own and all other 
fees, which sum may be recovered of such delinquent, with 
interest if he receives the benefit thereof, or otherwise shall 
be a lien upon such part, and the rents and profits thereof, 
until such sum, with interest thereon at the rate of nine per 
cent, and all taxes and repairs, shall be repaid in full. R. S.., 
ch. 135, sec. 7. 

11. Before any appraisal is made by the selectmen, they 
should appoint a time and place of hearing therefor, and 
cause the owners, if any, who reside in the state to be noti- 
fied thereof by a copy of the notice. The form of the no- 
tice may be : 

To C. D., of N. 

You are hereby notified that we, the subscribers, select- 
men of said N., will meet at the saw-mill owned by A. B. 
and yourself, in said N., on the twenty-fifth day of July 
instant, to appraise the cost of certain repairs made thereon, 
and on the dam and flume thereof, by said A. B., and which, 
upon a hearing duly had before us, on the first day of June 
last, you were ordered by us to cause to be made within 
thirty days thereafter, and which repairs, you not having 
complied with said order, have been made by the said A. B. 
at your expense, as he says. 

Given under our hands, this fifteenth day of July, 1843. 

N. L. } Selectmen 
P. P. [ of 
D. T. j N 

The form of the certificate of appraisal may be : 
Whereas the subscribers, selectmen of the town of N., 
did, on the first day of June last, examine a certain saw- 
mill, dam and flume in said N., owned by A. B. and 



280 MILLS AND THEIR REPAIRS. 

C. D., of said M., in common, and did upon a hearing duly 
had, after due notice to all persons interested, adjudge that 
certain repairs were necessary to be made therein, viz. (here 
insert the repairs ordered ;) and that said A. B. and C. D. 
were each the owner of one undivided half of said mill, dam 
and flume, and that said C. D. had neglected to cause his 
just proportion of the necessary repairs to be made, and did 
therefore order said C. D. to cause one half of said re- 
pairs to be made within thirty days from said first day of 
June ; and whereas said C. D. has not complied with said 
order, but has neglected to cause said repairs to be made, 
according to said order, and the said A. B., at his own 
proper cost and charge, has made said repairs, for which 
said C. D. is liable ; we therefore do appraise the cost of 
the said repairs so ordered to be made by the said C. D., 
and made by said A. B. at the sum of fifty dollars, and that 
our fees for making said examination are three dollars. We 
also certify that the cost of notifying said C. D. was fifty 
cents, and the fees of witnesses in said examination one dollar 
ninety-two cents. 

Given under our hands, this twenty-fifth day of July, 1843. 

N. L. \ Selectmen 
P. P. [ of 
D. T. j N . 

12. If such mill, mill dam or flume shall be situate in 
more than one town, petition shall be made to and acted 
upon by the selectmen of all such towns, acting as one board. 
Ibid., sec. 8. 

13. If any special contract has been made by such part 
owners respecting rebuilding or repairing any mill, mill dam 
or flume, it shall not be affected by the provisions of this 
chapter. Ibid., sec. 9. 

14. The toll for grinding grain of any kinds shall not be 
more than one sixteenth part thereof, and for bolting not 
more than one sixty-fourth part thereof. Ibid., sec. 10. 

15. If any owner of any grist mill, or any person employ- 
ed therein, shall take more toll than as aforesaid, he shall for- 
feit, for every offence, five dollars, to be recovered by action 
of debt in the name and to the use of the person injured 
thereby, and shall moreover be liable at the suit of the party 
injured for damages. Ibid., sec. II. 

16. " It is very evident that, under this statute, one party 
is not authorized to call upon the other to erect a mill or 



FENCES AND FENCE-VIEWERS. 



281 



dam in a different place, or of a different character from 
that already existing. Nor can he, upon the neglect of the 
other to repair, proceed to erect a mill, or dam, or flume, 
substantially different from the former, and compel the other 
to pay. The statute authorizes a repair of the mill, &,c. 
A rebuilding may, perhaps, under some circumstances, be 
considered a repair, within the meaning of the statute; 
but it cannot be extended beyond a substantial rebuilding. 
It does not authorize one party to erect a new mill, or dam, 
varying substantially in its dimensions and situation from 
the old." 9 N. H. R. } 281. 



CHAPTER 60 



OF FENCES AND FENCE-VIEWERS. 



1. Fences, how built or repaired. 

2. Division by parties made. 

3. Form of such division. 

4. Fence-viewers may divide. 

5. Application and notice, form. 

6. Form of such division. 

7. What fence is sufficient. 

8. If fence insufficent, remedy. 

9. Proceedings in such case. 

10. Such fence, how repaired. 

11. Expenses, how recovered. 

12. Proceedings to recover ex- 
pense. 

13. Double value allowed. 



14. Owner beginning to improve. 

15. Value in such case appraised. 

16. Forms of proceedings. 

17. Owner ceasing to improve. 

18. Duties of fence-viewers. 

19. Fees of fence-viewers. 

20. Applications to be written. 

21. Oath of fence-viewers. 

22. If fence on town line, duty. 

23. Occupants deemed owners. 

24. Neglect of fence-viewer. 

25. Duties and rights of owners. 

26. Fences on rail-roads. 



1. The owners of adjoining lands under improvement 
shall build and repair the partition fence between them, in 
equal shares. R. S., ch. 136, sec. 1. 

2. Any division of such fence, made by the parties in 
writing and recorded in the town records, shall be forever 
binding upon the parties, and all succeeding owners and oc- 
cupants of the land. Ibid., sec. 2. 



282 FENCES AND FENCE-VIEWERS. 

3. The form of such agreement may be : 

This agreement, made between A. B. and C. D., both of 
N., in the county of C, Witnesseth : 

That whereas the said A. B. and C. D. are owners of two 
tracts of land in said N., adjoining each other, and bound- 
ed thus: (here insert a description of the premises;) and 
have agreed to make division of the fence on said line ; now 
it is mutually agreed that the northerly half of said fence 
beginning at , and ending at , shall be forever 

built and kept in repair by said A. B., his heirs and all per- 
sons, owners of the land claiming under him ; and that the 
southerly half thereof, beginning at , and ending at , 
shall be forever built and kept in repair by the said C. D., 
his heirs and all persons claiming under him. 

In witness whereof we have hereto set our hands, this 
first day of May, 1843. A. B. (seal) 

In presence of : C. D. (seal.) 

The town-clerk should record the agreement in the town 
book kept for that purpose, and add at the bottom — 

A true record. Attest: R. M., Town-Clerk. 

4. If the parties shall not agree upon a division, the 
fence-viewers of the town, upon application, shall make 
such division, which, being recorded in the town records, 
shall be of the same force as a division made by the parties, 
and a copy of such record shall be evidence. Ibid., sec' 3. 

5. It is now necessary that the application should be in 
writing. The following form may be used : 

To the Fence- Viewers of the town of M. 

You are hereby requested to make division of the fence 
between the lands of A. B. and myself, in said town, begin- 
ning at , and ending at , as the said A. B. and 
myself do not agree upon the same, and to cause the same 
to be recorded according to law. C. D. 

May 1, 1843. 

Before making any division the fence-viewers must ap- 
point a time and place of hearing, and give notice thereof 
to the parties a reasonable time. A week's notice will gen- 
erally be sufficient. Service may be made by giving in 
hand to the person notified, or leaving at his usual place of 
abode, the original notice, and keeping an attested copy, on 



FENCES AND FENCE-VIEWERS. 283 

which the return of service is made. The form of the or- 
der of notice may be : 

To A. B., of M. 

You are hereby notified that application in writing has 
been made to the subscribers, fence-viewers of the town 
of M., by C. D. of said M., to make division of the fence 
between the land of said C. D. and yourself, in said town, 
beginning at , and ending at , you not agreeing 

thereon : We therefore appoint Tuesday, the ninth day of 
May instant, at nine o'clock in the forenoon, and the north 
end of the line of said fence, as the time and place of hear- 
ing said application, when and where you may be present 
and be heard thereon. 

Given under our hands, this first day of May, 1843. 

D. D. ) Pence-viewers 

E. G. )-ofM . 

6. The form of a division of a fence by fence-viewers may 

be: 

Whereas on the first day of May, 1843, application in 
writing was made to the subscribers, fence-viewers of the 
town of M., in the county of B., by C. D., of said M., to 
make division of the fence between the lands of said C. D. 
and A. B., of said M., beginning at and ending 

at , both in said town, said A. B. and C. D. not 

agreeing on the division thereof, on which application we 
appointed Tuesday, the ninth day of May instant, at nine 
o'clock, in the forenoon, and the north end of the line of 
said fence as the time and place of hearing thereon, and 
caused said A. B. and C. D. to be duly notified thereof, we 
attended at the time and place of hearing so appointed, and 
having heard said parties and their evidence, and examined 
the fence on said line, we do make the following division 
thereof: That part of said fence beginning at , and 

ending at , we assign to said A. B., and order that 

the same be rebuilt and kept in repair by him, his heirs and 
assigns forever : That part of said fence beginning at , 

and ending at , we assign to said C. D., and order 

that the same be rebuilt and kept in repair by him, his heirs 
and assigns forever. 

Our fees for said service are two dollars, one half of 
which shall be paid by each of said parties. 

Given under our hands, this sixth day of May, 1843. 
D. D., E. G., Fence-viewers of ' M. 



284 FENCES AND FENCE-VIEWERS. 

B ss., May 9, 1843. Then appearing the said 

D. D. and E. G. made oath that in making division of said 
fence in the manner aforesaid, they acted impartially, up- 
rightly and to the best of their judgment. 

Before me, B. B., Justice of the Peace. 

The notice, certificate of service and the division and 
oath should all be recorded in the town records by the town- 
clerk, and attested by him as true copies of the originals. 

7. All fences, four feet high and in good repair, consist- 
ing of rails, timber, boards or stone walls ; and all brooks, 
rivers, ponds, creeks, ditches, hedges and other things 
deemed by the fence-viewers to be equivalent thereto, shall 
be accounted legal and sufficient fences. R. S., ch. 136, 
sec. 4. 

8. The fence-viewers, upon application of either party, 
shall view any fence alleged to be insufficient ; and, if they 
judge the same to be insufficient, they shall limit a time for 
the building or repair of the same, and give notice to the 
delinquent party to build or repair the same within the time 
so limited. Ibid., sec. 5. 

The notice by the fence-viewers to the owner to repair 
a fence, must state in what town the fence is ; should de- 
scribe the fence so that it may be readily known ; and must 
be signed by the fence-viewers in their official capacity. 
They must be called fence-viewers in the notice itself. 15 
Pick. R., 125. 

9. The form of the application in substance may be : 
To the Fence- Viewers of the town of M. , in the County of P. 

Whereas the fence between the land of A. B., of said M., 
and myself, situate in said M., has been heretofore divided, 
and the part thereof beginning at , and ending at , 
ordered to be kept in repair by the said A. B., and the part 
beginning at , and ending at , was ordered to be 

kept in repair by myself ; and whereas that part of said 
fence assigned to me is now in good repair, but that part of 
said fence assigned to said A. B. is out of repair and insuf- 
ficient : You are therefore requested to examine said fence, 
and to adjudge the same to be insufficient, and to order the 
said A. B. to repair his part thereof, according to the law in 
such cases made and provided. C. D. 

July 1, 1843. 



FENCES AND FENCE-VIEWERS. 285 

The form of the notice given by the fence-viewers upon 
such application may be : 

To A. B., of 31., in the County of B. 

You are hereby notified that application in writing has 
been made to the subscribers, fence-viewers of the said M., 
to examine the fence between the land of C. D., of said M., 
and yourself, situate in said town, and beginning at , 

and ending at , which has heretofore been divided 

between you, and to order you to repair that part thereof 
which you are by law bound to repair : You are notified 
that we will attend at the dwelling-house of said C. D., in 
said M., on Thursday, the eighth day of July instant, at 
nine o'clock in the forenoon, for the purpose aforesaid, when 
and where you may attend, and be heard. 

Given under our hands, this first day of July, 1S43. 

P. R. ) Fence-viewers 
S. T. ) of 31 . 

The notice is to be served in the manner previously stated, 
and in all cases an affidavit of service should be made on 
the back of the copy kept. The party can never serve a no- 
tice legally. 

If the fence is adjudged to be insufficient, the notice to 
the delinquents, to repair it, may be in form thus : 
To A. B., of 31. , in the County of B. 

Whereas application in writing was made to us, the sub- 
scribers, fence-viewers of the town of M., in said county, 
on the first day of July, 1843, by C. D., of said M., to ex- 
amine the fence between the land of the said C. D. and your- 
self, situate in said M., beginning at , and ending 
at , which has been heretofore divided between you, 
and to order you to repair that part thereof which you are 
by law bound to repair ; upon which application we appoint- 
ed Thursday, the eighth day of July instant, at nine o'clock 
in the forenoon, at the dwelling-house of said C. D., in said 
M., as the time and place of hearing for the purposes men- 
tioned therein, and caused you to be duly notified thereof; 
and having attended at said time and place of hearing, and 
having examined said fence, and heard the parties and their 
evidence, we adjudge the part of said fence beginning at , 
and ending at , which said C. D. is bound to keep in 
repair, to be sufficient ; and the part of said fence beginning 
at , and ending at , which you are bound by 



286 FENCES AND FENCE-VIEWERS. 

law to repair, to be insufficient ; and order you to cause the 
same to be put in good repair within six days from the date 
hereof. 

Given under our hands, this eighth day of July, 1843. 

P. R. > Fence-viewers 
S. T. ) ofM . 

B ss., July 8, 1843. Then appearing the said 

P. R. and S. T., made oath that in making the foregoing di- 
vision by them signed they had acted impartially, uprightly 
and to the best of their judgment. 

Before me, B. B., Justice of the Peace. 

This should be served on the delinquent, by giving him 
in hand, or leaving at his usual place of abode, a copy of 
the above order, attested by the fence-viewers as a true copy. 
The original in this case is to be kept, and the affidavit of 
service made upon it. The time fixed should be a reasona- 
ble one for making the repairs after notice is received, which 
should be given immediately. 

10. If the party so notified shall not build or repair such 
fence within the time so limited, the owner of the adjoining 
land may build or repair the same. Ibid., sec. 6. 

11. The fence-viewers, upon application, shall view the 
fence so built or repaired ; and if they judge the same and 
the residue of the fence between the same owners upon the 
same tract of land to be sufficient, they shall appraise the 
fence so built or repaired. Ibid., sec. 7. 

12. The application to appraise may be in form thus : 
To the Fence- Viewers of the town of M., in the County of B. 

Whereas on the eighth day of July, 1843, upon a hearing 
before you, upon an application by the subscriber, to ex- 
amine the fence between the land of A. B., of said M., and 
myself, situate in said M., you adjudged the part thereof be- 
ginning at , and ending at , which the said 
A. B. is by law bound to repair, to be insufficient, and or- 
dered him to cause the same to be put in good repair within 
six days from the date thereof, of which order said A. B. 
was duly notified on the same day ; and whereas said A. B. 
has neglected to cause said repairs to be made according 
to said order, although said time has elapsed, and the sub- 
scriber, since the expiration of said six days, has caused said 
repairs to be made at his own cost and expense : You are 
requested to examine said fence and the repairs so made, 



FENCES AND FENCE-VIEWERS. 287 

and appraise the same, according to the law in such cases 
made and provided. C. D. 

M , July 18, 1843. 

The form of notice thereon may be : 

To A. B., of 31., in the County of B. 

Whereas, on the eighth day of July, 1843, upon a hearing 
had, it was adjudged that the part of the fence between the 
land of C. D., of said M., and yourself, situate in said M., 
which you are by law bound to keep in repair, was insuffi- 
cient, and you were ordered to cause the same to be put in 
good repair within six days from the date thereof, of all 
which you had due notice ; and whereas application has 
been made to us, fence-viewers of said M., by said C. D., 
alleging that you have neglected to cause said repairs to be 
made, and that after the expiration of said six days he caused 
the same to be made at his own cost and expense, and re- 
questing us to examine and appraise the same : You are no- 
tified that we will attend for that purpose, at the dwelling- 
house of the said C. D., in said M., on the twenty-eighth 
day of July instant, at nine o'clock in the forenoon, when 
and where you may attend and be heard. 

Given under our hands, this eighteenth day of July, 1843. 

P. R. ) Fence-viewers 
S. T. ) of 31 . 

This notice may be served, by leaving the original and 
keeping an attested copy, as in section 5. 

The form of the appraisal may be : 

Whereas, on the eighteenth day of July, 1843, application 
in writing was made to the subscribers, fence-viewers of the 
town of M., in the county of B., by C. D., of said M., to 
examine the fence between the land of A. B. and the said 
C. D., situate in said M., beginning at , and ending 

at , which the said A. B. is by law bound to keep in 

repair, and which, upon proceedings duly had before us on 
the eighth day of July instant, was by us adjudged to be 
insufficient, and the said A. B. was ordered to cause the 
same to be put in good repair within six days from that date, 
of all which said A. B. had due notice, which said repairs 
have not been made by said A. B. according to said order ; but 
after the expiration of said six days were made by said C. D. 
at his own expense, and the cost of which he prays us to ap- 



288 FENCES AND FENCE-VIEWERS. 

praise ; and having appointed the twenty-eighth day of July, 
1843, at nine o'clock in the forenoon, at the dwelling-house 
of said C. D., in said M., as the time and place of making 
said examination and appraisement, and having caused the 
said C. D. to be duly notified thereof, and having at- 
tended at said time and place, and heard the parties and 
their evidence, we adjudge the part of said fence so put 
in repair by said C. D., and the residue thereof, between said 
A. B. and C. D., on the same tract, to be sufficient, and 
we appraise the cost of making said repairs at the sum of 
eight dollars ; and we certify that our fees for making said 
appraisal are two dollars. 

Given under our hands, this twenty-eighth day of July, 
1843. P. R. ) Fence-vieivers 

S. T. f of M . 

B ss., July 28, 1843. Then appearing the said 

P. R. and S. T. made oath that in making the foregoing 
examination and appraisement by them signed they had 
acted impartially, uprightly, and to the best of their judg- 
ment. Before me, B. B., Justice of the Peace. 

13. The person so building or repairing such fence shall 
have the right to demand and recover double the said ap- 
praised value thereof "of the delinquent party, with costs of 
suit, in an action of assumpsit for labor and materials. 
Ibid., sec. 8. 

" It is necessary that the portion of the fence belonging 
to a delinquent owner should first be adjudged by the fence- 
viewers insufficient or defective, and that the owner should 
have written notice from them of that fact, and be requested 
in writing to repair or rebuild it within the time limited, in 
order to entitle the adjoining owner to charge him with the 
expenses of rebuilding or repairing it himself." 8 Green- 
leaf JR., 81. 

14. If the owner of land shall have improved the same 
before the owner of adjoining land, and erected a division 
fence, he shall be entitled to demand and recover of such 
owner of the adjoining land, when he shall begin to improve, 
the value of such part of the fence as, upon any division of 
the fence then or previously made by the parties, or the 
fence-viewers, it was his duty to build. Ibid.; sec. 9. 

15. In such case, if the parties do not agree, the fence- 
viewers on application shall appraise such fence, and the 



FENCES AND FENCE-VIEWERS. 289 

party shall recover the value agreed upon or appraised, in 
an action of assumpsit for so much fence sold, if the same 
is not paid in thirty days after a demand thereof is made. 
Ibid., sec. 10. 

16. The form of the application may be : 

To the Fence-Viewers of the toion of R. 

Whereas I have heretofore improved a certain tract of 
land in the southerly part of said R., adjoining the wood 
lot of A. B., of said R., and have erected at my own ex- 
pense a division fence between said lands, beginning at , 
and ending at , the said A. B. not then improving his 
said land ; and whereas the said A. B. has now begun to im- 
prove said land, but neglects to pay his just part of the value 
of said fence ; you are requested to make division of said 
fence, to examine and appraise such part thereof as ought 
to be made by said A. B., and to proceed therein accord- 
ing to the law in such cases made and provided. 

R ,May 1,1843. CD. 

A division of the fence must be made before the builder 
of the fence can recover. Application for such division 
and for an appraisal may be made in the same petition. 

The form of the notice thereon may be : 

To A. jB., of R., in the County of C. 

You are hereby notified that application in writing has 
been made to the subscribers, fence-viewers of said R., by 
C. D., of said R., requesting us to examine, divide and ap- 
praise a certain division fence heretofore built by him at his 
own expense between his improved land and your unim- 
proved land, in the southerly part of said R., beginning 
at , and ending at , your just part of the value of 
which you neglect to pay to him, although you have now be- 
gun to improve your said land ; and we appoint Tuesday, 
the tenth day of May instant, at nine o'clock in the forenoon, 
at the north end of the fence aforesaid, as the time and place 
of said examination and appraisal, when and where you 
may. attend and be heard. 

Given under our hands, this first day of May, 1843. 

E. S. ) Fence-vietoers ' 
V. G. ] of R . 

This notice is to be served like that in section 5. 

Y 



290 FENCES AND FENCE-VIEWERS. 

The form of the appraisal may be : 

Whereas application in writing, on the first day of May, 
1843, was made to the subscribers, fence-viewers of the 
town of R., in the county of C, by C. D., of said R., re- 
questing us to examine and make division of a certain fence 
before that time built by him at his own expense, between 
his improved land and the unimproved land of A. B., of said 
R., situate in the southerly part of said R., beginning at , 
and ending at , his just part of the value of which said 
A. B. neglected to pay to said C. D., although said A. B. 
had begun to improve his said land, and to appraise his 
portion thereof; upon which application we appointed Tues- 
day, the tenth day of May instant, at nine o'clock in the 
forenoon, at the north end of said fence, as the time and 
place of examination and appraisal, and caused said A. B. 
and C. D. to be duly notified thereof; and having at- 
tended at said time and place, and heard the parties and 
their evidence, and examined said fence, and being satisfied 
that the allegations aforesaid are true, we do make division 
of said fence as follows : We order that the part thereof 
beginning at , and ending at , be kept in repair for- 
ever by the said A. B., his heirs and assigns; and the part 
thereof beginning at , and ending at , be kept in 
repair forever by the said C. D., his heirs and assigns; and 
we do appraise the value of the part of said fence which is 
to be kept in repair by said A. B., and which has been built 
by said C. D., at the sum of fifteen dollars. 

We certify our fees in making said appraisal to be three 
dollars, two thirds of which we order to be paid by said A. B. 

Given under our hands, this eighth day of May, 1843. 

E. S. ) Fence-viewers 
V. G. \ of R . 

The oath may be the same as in sec. 6. 

17. If any of the owners of adjoining land shall cease to 
improve his land, or shall lay the same in common, he shall 
not have a right to remove his part of the fence, but shall 
be under no obligation to repair or rebuild the same so long 
as said land shall lie in common. Ibid., sec. 11. 

18. The fence-viewers shall give notice in writing to the 
other party interested therein, of every application, and of 
the time and place appointed for considering the same ; 
shall hear the parties, if they attend, and their evidence, 
and shall reduce their decision to writing, which shall be 



FENCES AND FENCE-VIEWERS. 291 

signed ; and they shall cause a copy thereof to be given to 
each of the parties within one week. Ibid., sec. 13. 

This last provision is an important one, and should be 
carefully remembered. It applies to every decision made 
by the fence-viewers upon an application. A copy of the de- 
cision, signed and attested by them as a true copy, should be 
given to each party within one week after the day of hearing. 
After copying the decision in full, with the signatures, add, 

A true copy of the original. Attest : 

A. B., C. D., Fence-viewers of M. 

Notice in writing is also to be given before any hearing, 
to the parties interested ; and every decision, it would seem, 
must now be sworn to as provided in section 21. 

19. Each fence-viewer shall be allowed one dollar per 
day for his services, to be paid by the party making the ap- 
plication; and he shall be entitled to demand and recover 
the one half thereof of the other party, in an action of as- 
sumpsit for money paid for his use, unless in the opinion of the 
fence-viewers justice requires a different division of the 
costs ; in which case they may so order. Ibid., sec. 14. 

20. Every application to the fence-viewers shall be in 
writing, and one application may embrace so many subjects 
as from the nature of the case may be acted upon at one 
meeting. Ibid., sec. 15. 

21. The decision of the fence-viewers, upon their being 
duly sworn before a justice that they have acted impartially, 
uprightly, and to the best of their judgment, shall be final 
and conclusive upon the parties. Ibid., sec. 16. 

This oath should be taken after the decision is made, and 
a certificate of the oath written by the justice on the de- 
cision, as in sec. 6. 

22. If the fence in controversy is situate on the line of 
two towns, the application shall be made to the fence-viewers 
of the town in which the parties reside : if they reside in 
different towns, then to the fence-viewers of that town in 
which the applicant does not reside. Ibid., sec. 17. 

This refers to cases where the fence is on the line itself; 
not where a part of it is in one town and apart in the other. 

23. The actual occupant of any land shall be deemed 
the owner thereof, for any of the purposes of this chapter. 
Ibid., sec. 18. 

24. If any fence-viewer, without sufficient cause, shall 
neglect to attend and perform any of the duties required by 



292 FENCES AND FENCE-VIEWERS. 

law, he shall forfeit six dollars to any person who will sue 
for the same. Ibid., sec. 18. 

25. The party neglecting to build or keep in repair any 
partition fence which he is bound to maintain, shall be lia- 
ble for all damages arising from such neglect, and shall have 
no remedy for any damages happening to himself therefrom. 
Ibid., sec. 12. 

61 Unless the fence, or the line on which it is to be made, 
has been divided by a written agreement between the par- 
ties, or assigned pursuant to the statute, or by prescription, 
neither party is obliged to make or maintain any particular 
part of the partition fence. In such case each party at his 
peril is bound to keep his cattle on his own land." 6 Mass. 
R., 100. 

*' The public have no rights in a highway, but a right to 
pass and repass thereon ; they cannot, therefore, justify 
turning their cattle thereon, for the purpose of grazing ; 
and if cattle so on the highway, for the purpose of grazing, 
escape into the adjoining close, the owner of the cattle can- 
not avail himself of the insufficiency of the fences in excuse 
of the trespass." 16 Mass. R., 33. 

" If I turn my horse into the highway, to feed on my own 
soil there, I am bound to keep him on my own soil ; and if 
he escape into a part of the highway which runs through 
the land of my neighbor, and there feed, it is a trespass for 
which I am liable ; and still more if my horse, being thus 
unlawfully on my neighbor's soil in the highway, break 
thence into his enclosure, I shall be liable, whether his fence 
were sufficient or not. Such, in our opinion, is the true 
meaning of the statute. It was not intended to give to any 
person the right of using the highway as a pasture, except 
to the owners of the soil ; but the object of it was to com- 
pel the owners of lands adjoining highways to fence against 
every thing which might be lawfully in the highways." 4 
iV. H. R., 39. 

'* Every man is bound to fence against every thing that 
may be lawfully in the highway. But where two men own 
adjoining closes, with an undivided partition fence, which 
both are equally bound to keep in repair, each is bound to 
keep his cattle on his own land at his peril. But it is the 
occupier of a close who is bound to keep the fences in repair, 
and not the owner ; and the occupier of lands where there are 



FENCES AND FENCE-VIEWERS. 293 

no fences is bound by the same principle to keep the cattle 
he puts there upon the land." 7 N. H. R., 521. 

A division of all the fence in dispute between the parties, 
made in their presence by the fence-viewers, may be legal ; 
although the fence on the whole line between them be not 
divided at that time. 13 Maine R., 423. 

An occupant of land, who is bound to maintain a fence 
between his own and an adjoining enclosure, may place half 
of it, of reasonable dimensions, on the land of the adjoin- 
ing owner ; and he may cut half of a ditch on the land of 
such owner, when a ditch is proper for a partition fence. 2 
MetcalfR., 180. 

Where one of two owners of adjoining lots of land sees 
the other erect a permanent fence between their lands, with- 
out making any objection, this is evidence of an agreement 
on his part that the fence is erected on the true line. 8 
N. H. JR., 378. 

See references in chapter 62, " Of Pounds." 

26. If any rail-road corporation shall neglect to keep a 
sufficient and lawful fence on each side of their road, any 
person against whose land such fence is insufficient, may 
notify the agent of such corporation thereof; and if such 
fence shall not be made sufficient within twenty days after 
such notice, the owner of such land may make or repair 
such fence, and may thereupon recover of said corporation, 
in an action of assumpsit, double the amount necessarily 
expended in making or repairing the same, as aforesaid ; 
provided, however, that the foregoing provisions of this sec- 
tion shall not apply to any case where such corporation shall 
have settled with and paid the owner of such land for build- 
ing and maintaining such fence. 

If any person, having been thus settled with, and paid 
for keeping any such fence in repair, shall neglect so to do, 
such rail-road corporation may make such repairs, and re- 
cover the necessary expense thereof of the person liable, 
R.S.,ch. 142, sees. 6, 7. 



294 



CHAPTER 61 



OF COMMON FIELDS. 



1. Meeting of owners called. 4. Bounds renewed, when. 

2. Division of fence, how made. 5. Rights and duties of owners. 

3. Supported by tax, when. 

1. When several owners of land have agreed or shall 
agree to improve the same in one common field, any justice, 
on application of two or more owners, may call a meeting 
of such owners, and the majority of them when met may 
determine in what manner the same shall be fenced. R. S., 
cli. 136, sec. 20. 

The form of such application and warrant may be simi- 
lar to that of calling a town meeting, where one has never 
been holden. 

2. They may, in such way as they judge equitable, assign 
to each owner the share of his fence to be erected and main- 
tained by him ; and such assignment, being recorded in the 
town records, every such owner and all succeeding occupants 
of his land shall be forever subject to all such liabilities in 
relation thereto as he would be if the same were a partition 
fence of his own land. Ibid., sec. 21. 

The forms in such case may be similar to those in the 
preceding chapter. 

3. Such owners may agree to erect and maintain such 
common fence by a tax ; and thereupon they may adopt 
by-laws ; and their officers shall have power, in conformity 
to such by-laws, to assess and collect such taxes. Ibid., 
sec. 22. 

4. Owners of lands in common fields, or where there is 
no partition fence, shall once in every five years, on six 
days notice previously given, run the lines and mark and re- 
new the bounds between them, on penalty of forfeiting five 
dollars for each neglect, for the use of the person giving 
such notice. Ibid., sec. 23. 

The notice may be similar to that for the perambulation 
of the lines of towns. 

5. The rights of the several owners in common fields, 
after an assignment of the fence, and in relation to the 



POUNDS AND IMPOUNDING ANIMALS. 295 

fence so assigned, are the same as they would be if such 
fence had been assigned to him under chapter 60. For his 
rights and liabilities, and for forms, see that chapter. 



CHAPTER 62. 

OF POUNDS AND IMPOUNDING ANIMALS. 



1. Cattle, when impounded. 

2. Cattle, how impounded. 

3. Notice for pound-keeper. 

4. Notice to owner, if known. 

5. Notice, if owner unknown. 

6. Cattle, how released. 

7. Appraisal of damages. 

8. Proceedings thereon, mode. 

9. Release on payment of dam- 
ages. 

10. Petition for sale of cattle. 

11. Mode of proceeding thereon. 



12. Proceeds, how disposed of. 

13. If no claimant, proceedings. 

14. Pound to be provided. 

15. Rescue and pound breach. 

16. Cattle rescued retaken. 

17. Evidence of rescue, what. 

18. Cattle to be fed duly. 

19. Compensation for food. 

20. Fees of pound-keeper. 

21. Fees of impounder. 

22. Rights and duties of parties. 

23. Rams going at large, penalty. 

1. Any person may impound any swine, neat cattle, 
horses, sheep or other creatures that shall be found doing 
damage in his enclosure, or any such creature found going 
at large in any highway, or street, or on any common, in 
violation of the laws of the state or any by-law of such 
town. R. S., ch. 137, sec. 1. 

2. Such creatures shall be impounded in the public pound, 
if there is any in the town ; otherwise they may be impound- 
ed by the party taking up such creatures, in his own barn or 
enclosure. Ibid., sec. 2. 

3. The person impounding any creatures shall leave with 
the pound-keeper, in writing, an estimate of the damage 
done by such creatures, or of the penalty incurred by the 
owner, and the amount of the fees and charges incurred. 
Ibid., sec. 3. 

The form of the estimate of damage and charges, to be 
left with the pound-keeper, may be : 

To R. H., keeper of the pound in the town of S. 
I have this day taken up and impounded, in the town 



296 POUNDS AND IMPOUNDING ANIMALS. 

pound under your care, one white horse, the property of 
W. F., of said S., found doing damage in my enclosure in 
said S., lying on the road leading from said S. to H., known 
as the Moore meadow. The damage demanded is two 
dollars. $2.00 

And the following fees and charges, viz. 

Travel from said enclosure to the pound, 

one mile, - - - - .6 

Driving said horse to the pound, - .4 

Notice to owner, - .25 

Travel to serve notice, two miles, - .8 

Keeping one day in pound, - - .15 

Pound-keeper, for impounding, - - .5 



$2.63 
S ,May 1,1843. D.N. 

If the horse was found going at large not doing damage, 
omit all after the word "found" down to " two dollars," and 
insert instead — going at large in the public highway near my 
house in said town. If the horse is impounded for a violation 
of a by-law of the town, add — in violation of a hy-law of 
said town, ichereby the owner has incurred a penalty of one 
dollar. 

4. He shall, within twenty-four hours from the time of 
impounding, cause to be delivered to the owner or person 
who last had them in his possession or keeping, if known to 
him, or cause to be left at his usual place of abode, a notice 
in writing, describing the creatures impounded, stating his 
estimate of the damage done, and the time when and the 
place where the same was done, or of the penalty incurred, 
the amount of fees and charges then incurred, and the place 
of impounding. Ibid., sec. 4. 

The form of such notice may be : 
To W. F., of S. 

You are hereby notified that I have this day impounded 
in the common pound of the town of S. a white horse be- 
longing to you, which was found this day doing damage in 
my enclosure in said S., lying on the road leading from said 
S. to H., known as the Moore meadow, when and where he 
did damage to the amount of two dollars. The fees and 
charges of impounding already incurred are as follows : 



POUNDS AND IMPOUNDING ANIMALS. 297 

Travel from said enclosure to the pound, 

one mile, .6 

Driving said horse to the pound, .4 

Notice to owner, - - .25 

Travel to serve notice, two miles, - .8 

Keeping one day in pound, - - .15 

Pound-keeper's fee for impounding, - .5 

Amount of damages aforesaid, - - 2.00 



$2.63 
S , May 1, 1843. D. N. 

This notice should correspond with the notice left with the 
pound-keeper ; and if the horse was found going at large, 
or has incurred a penalty, it should be altered accordingly. 

The original notice should be given, and a true copy kept 
by the person making the service, who should be some per- 
son competent to be a witness in the case. 

5. When the owner or keeper of any creatures impound- 
ed is not known, the person impounding the same shall, with- 
in the same time, post up a like notice in some public place 
in the town, and two adjoining towns. Ibid., sec. 5. 

The form of such notice may be : 

To whom it may concern. 

Taken up this day, doing damage in my enclosure in the 
town of S., lying on the road leading from said S. to H., 
called the Moore meadow, one white horse, the owner of 
which is unknown, when and where he did damage to the 
amount of two dollars, for which I have impounded said 
horse in the common pound of said S., and the fees and 
charges of impounding already incurred are as follows : 
(Here copy the charges, as before.) D. N. 

8 , May 1, 1843. 

If the horse was taken up for going at large, the corres- 
ponding changes in this form should be made. 

6. If the owner, or any party claiming such creatures, 
shall pay the penalty or estimated damages and charges in- 
curred, to the person impounding, or to the pound-keeper, the 
creatures impounded shall be forthwith discharged from such 
pound. Ibid., sec. 6. 

7. If the owner or party claiming such creatures, shall neg- 
lect for the space of forty-eight hours, or shall refuse to pay 



298 



POUNDS AND IMPOUNDING ANIMALS. 



the damages estimated by the person impounding the same, 
either of said parties may apply to some justice of the peace, 
who shall notify the other party to appear before him, at a 
time and place appointed, as early as practicable ; and after 
hearing the parties, shall appoint three disinterested persons 
to appraise such damages. Ibid., sec. 7. 

The form of such application may be : 
To B. jB., Esquire, one of the Justices of the Peace within 
and for the County of H. 

Represents D. N., of S., in said county, that on the first 
day of May, 1843, he found in his enclosure in said S., 
lying on the road leading from said S. to H., known as the 
Moore meadow, one white horse belonging to W. F., of said 
S., doing damage therein ; that the damage done by said 
horse amounted to two dollars, and for that cause he, the 
said D. N., impounded said horse in the common pound in 
said S. on the same day, and gave due notice thereof to the 
said owner of the horse, who has neglected, for the space of 
forty-eight hours after said notice, to pay said damage ; 
wherefore the said D. N. prays that three disinterested per- 
sons may be appointed to appraise the damage done as afore- 
said by said horse. D. N. 

It may be very proper that the applicant should make oath 
to this applcation, but it is not essential. 

The form of the order of notice, to be attached to and 
made a part of said application, may be : 

Upon the foregoing application it is ordered that the said 
D. N. give notice to the said W. F., to appear before me, at 
my dwelling-house in said S., on Tuesday, the fifth day of 
May instant, at nine o'clock in the forenoon, to shew cause, 
if any he have, why appraisers should not be appointed as 
requested in said application, by reading to the said W. F. 
the said application and this order thereon, or by leaving an 
attested copy of said application and order at his usual place 
of abode, three days at least before said day of hearing. 

Given under my hand, this first day of May, 1843. 

B. B., Justice of the Peace. 

Upon the hearing, if no sufficient objection appears, the 
justice may issue his warrant to " three disinterested per- 
sons," to appraise the damages. The form of it may be : 






POUNDS AND IMPOUNDING ANIMALS. 299 

To A. C, D. E., and F. G., of S., in the County of H. 

y^T^y^v Whereas application has been made to the 
EJBjil^ffia subscriber, one of the justices of the peace in 
N ^tjij^ x and for said county, to appraise the damage 
done by a horse belonging to W. F., of said S., in the enclo- 
sure of D. N., of said S., lying on the road leading from 
said S. to H., known as the Moore meadow, on the first day 
of May, 1843, you are hereby appointed to appraise the 
damage, if any, which may have been done as afore- 
said ; you are, as soon as practicable, to give to said parties 
due notice of the time when you will attend at the said 
meadow for the purpose aforesaid, that they may attend and 
be heard thereon, and to make report to me whether any 
damage was done by said horse at the time of his last being 
in said enclosure only, and of the sum at which you esti- 
mate the same. 

Given under my hand and seal, this fifth day of May, 
1843. 

B. B., Justice of the Peace. 

" Appraisers, appointed to estimate the damage done by 
cattle distrained doing damage, are not limited to the amount 
of damage claimed by the owner of the close in the notice 
of distress given by him to the owner of the cattle." 18 
Pick. U., 422. 

8. The appraisers so appointed shall notify the parties, 
and as early as practicable view the place where the damage 
is alleged to be done, and hear the parties and their evi- 
dence, and report to the justice whether any damage was 
done by such creatures at the time of their last being in such 
enclosure only, and the sum at which they estimate the same ; 
and such report, signed by a majority of such appraisers, 
shall be conclusive upon the parties. Ibid., sec. 8. 

The form of the notice to the parties may be : 

To W. F., of $., in the County of H. 
You are hereby notified that the subscribers have been 
duly appointed appraisers to view a certain enclosure in said 
S., owned by D. N., of said S., lying on the road leading 
from said S. to H., known as the Moore meadow, in which 
it is alleged that a horse belonging to you did damage on 
the first day of May, 1843 ; and will attend at said meadow 
on the eighth day of May instant, at nine o'clock in the 



300 POUNDS AND IMPOUNDING ANIMALS. 

forenoon, for the purpose of viewing the same, and esti- 
mating said damage, when and where you may attend and 
be heard. 

Given under our hands, this fifth day of May, 1843. 



B. C. ) 

D.E. } 
F. G. j 



Appraisers. 



This notice should be served by giving or leaving the 
original, and keeping an attested copy. At the time and 
place so appointed, the appraisers must attend and hear the 
parties ; and the form of their appraisal, which may be made 
on the warrant of appointment, may be : 

By virtue of the within appointment, having given due 
notice to all the parties interested, of the time and place of 
hearing, for the purpose within mentioned, we met at the 
meadow within named, on the eighth day of May, 1843 ; 
and having heard the parties and their evidence, we are of 
the opinion that damage was done by said horse in said en- 
closure on the first day of May, 1843, which was the time 
of his last being in said enclosure ; and we estimate said 
damages done at that time only, at the sum of two dollars. 

Given under our hands, this eighth day of May, 1843. 

B. C. j 
D. E. > Appraisers. 

Fees, $2.00. F. G. j 

H ss., May 8, 1843. Then appeared the said 

B. C, D. E. and F. G., and made oath that in making 
the foregoing appraisal and report they had acted impartial- 
ly, uprightly, and to the best of their judgment. 

Before me, B. B., Justice of the Peace. 

The forms in this section are used only when the parties 
disagree about the amount of damages, and the application 
may bemade by either party. The award should be return- 
ed to the justice immediately. 

9. Upon payment of the damages so appraised and the 
charges incurred, with the fees of the justice and appraisers, 
to be assessed by the justice, such creatures shall be dis- 
charged from the pound. Ibid., sec. 9. 

10. If such creatures impounded shall remain in the 
pound for four days after the day of such notice being given 
or posted as aforesaid, the person impounding the same may 



POUNDS AND IMPOUNDING ANIMALS. 301 

apply to a justice for the appraisal of the damages, if no ap- 
praisal has been made, and for an order for the sale or ap- 
praisal of such property. Ibid., sec. 10. 
To B. B., Esquire, one of the Justices of the Peace in and 
for the County of H. 

Represents D. N., of S., in said county, that on the first 
day of May, 1843, he found a white horse belonging to 
W. F., of said S., doing damage in the enclosure of him, 
the said D. N., in said S., lying on the road leading from 
said S. to H., and on the same day impounded the said 
horse for that cause in the common pound in said S. ; and 
on the second day of May aforesaid gave due notice thereof 
to the said W. F. ; yet, although more than four days 
have elapsed since notice was given to the said W. F. as 
aforesaid, he has neither replevied the said horse nor paid 
nor tendered to the subscriber, nor to the pound-keeper, the 
amount of the damages claimed, nor the fees and charges 
of impounding. Wherefore the said D. N. requests that 
said damages may be assessed and said horse ordered to be 
sold, according to the statute in such case made and pro- 
vided. D. N. 

S , May 6, 1843. 

The form of the order of notice thereon, to be made a 
part of the application, may be : 

Upon the foregoing application it is ordered that a hear- 
ing thereon be had at my dwelling-house in said S., on 
Tuesday, the tenth day of May instant, at one o'clock in the 
afternoon, and that said D. N. notify said W. F. to appear 
at said time and place, to shew cause, if any he have, why 
the request in said application should not be granted, by 
reading to the said W. F. the forgoing application and this 
order thereon, or by leaving at his usual place of abode an 
attested copy thereof, four days at least before said day of 
hearing. 

Given under my hand, this sixth day of May, 1843. 

B. B., Justice of the Peace. 

For general directions see section 7. The application to 
the justice in these cases may be under oath ; the justice 
may require it ; and the order of notice is sometimes under 
seal. Both are very proper. 

1 1. The justice, after notice and hearing the parties, may 
order such creatures, or so many of them as may be neces- 



302 POUNDS AND IMPOUNDING ANIMALS. 

sary, to be sold at public auction by the person impounding 
the same, who shall give notice and proceed in such sale in 
the same manner as sheriffs are required to do in sales upon 
execution, or he may order them to be appraised in the same 
manner as damages are required to be appraised, in which 
case the person impounding shall take them to his own use 
at the appraised value. Ibid., sec. 11. 

Upon such hearing, if the application is granted, the jus- 
tice will issue two orders ; one appointing appraisers of the 
damages, (as in sec. 7,) and the other authorizing a sale or 
appraisal of the property. The appointment of appraisers 
may be the same as in section 7. If the property is to be 
appraised, the form of the warrant may be altered so as to 
embrace both the appraisal of the damages and the property. 
If the property is to be sold, the form may be : 

To D. N. } ofS., in the County of H. 

Application having been made to me, B. B., 
S*)]p one of the justices of the peace in and for said 
%H^ y county, by you, on the sixth day of May, 1843, 
representing that on the first day of May, 1843, you found 
a white horse, belonging to W. F., of said S., doing damage 
in your enclosure in said S., lying on the road leading from 
said S. to H., known as the Moore meadow, and on the same 
day impounded the same for that cause in the common 
pound in said S., and on the second day of May, 1843, gave 
due notice thereof to the said W. F. ; and that, although 
more than four days had elapsed since said notice was given 
to said W. F., yet he had neither replevied said horse nor 
paid nor tendered to you nor to the pound-keeper the amount 
of the damages, nor the fees and charges of impounding, 
and requesting that said damages may be assessed and said 
horse ordered to be sold, according to law ; and having ap- 
pointed Tuesday, the tenth day of May, 1843, at one o'clock 
in the afternoon, at my dwelling-house in said S., as the time 
and place of hearing on said application, and caused said 
W. F. to be duly notified thereof, and having attended at 
said time and place and heard the parties and their evidence, 
it is ordered that after having posted up notices of the time 
and place of sale at two of the most public places in said 
town of S. forty-eight hours before the time of sale, you will 
then and there sell said horse at public auction to the high- 
est bidder ; and after deducting from the proceeds of said 



POUNDS AND IMPOUNDING ANIMALS. 303 

sale, the costs thereof, and also the damages and all fees 
and charges of impounding, you are to pay the overplus, if 
any, to said W. F., upon request. 

Given under my hand and seal, this tenth day of May, 
1843. B. B., Justice of the Peace. 

" When property is appraised for nonpayment of damages, 
the advertisement for its sale should not be posted up till 
after the appraisal is completed. The owner should have a 
right to redeem after the appraisal." 21 Pick. R., 55. 

12. After payment of the penalty or damages and all costs, 
the overplus of such sale or appraisal shall be paid to the 
owner, upon request. Ibid., sec. 12. 

13. If after four days no owner appears, or if after an 
appraisal or order of sale any of the creatures impounded 
shall remain unclaimed, the person impounding may take 
such creatures out of the pound, and proceed with them as 
strays. Ibid, sec. 13. 

This section applies to those cases only where the owner 
is unknown ; if the owner is known, there must be further 
proceedings. 

14. Every town shall provide and maintain a good and 
sufficient pound, for impounding and restraining all creatures 
liable to be impounded ; and if any town shall neglect to 
provide such pound, they shall incur a penalty of thirty dol- 
lars for each year they shall be destitute thereof, to be re- 
covered by any person who will sue for the same, to his 
own use, or may be punished by fine of the same amount. 
Ibid., sec. 14. 

A town is liable to a penalty, if it neglect either to 
build or keep in repair a pound sufficient to confine cattle. 
2 N. H. R., 105. 

15. If any person shall rescue any creature from the pos- 
session of any person, driving or being about to drive the 
same to the pound, or shall make any pound breach, or in 
any way directly or indirectly convey or deliver any creature 
out of any pound without lawful authority, he shall be pun- 
ished by a fine of twenty dollars, or by imprisonment not 
exceeding six weeks. Ibid., sec. 15. 

" If one take cattle from the lawful custody of a field driv- 
er which he is driving, this is a rescue, although they are 
never out of the view of the field driver, and are finally 
yielded to him and impounded." 17 Mass. R., 342. 



304 POUNDS AND IMPOUNDING ANIMALS. 

" Upon an indictment for pound breach the illegality of 
the distress cannot be shown in the defence. A party is not 
to judge for himself whether the imprisonment of his cattle 
is right or wrong. The statute gives him a different rem- 
edy. The defendant had no more right to break the pound 
than he would have to let a person out of jail because he 
was supposed to be unlawfully imprisoned." 5 Pick. R., 
514. 

16. The pound-keeper or person impounding may retake, 
within six days, any creature directly or indirectly convey- 
ed or delivered out of the pound without lawful authority, 
and again impound and detain the same until the damages 
and costs are paid, with the additional cost of such retaking, 
or until the same is otherwise legally released. Ibid., sec. 
16. 

17. If any creature so illegally conveyed out of any pound, 
shall be in any person's enclosure who shall refuse to deliver 
the same to the pound-keeper, or person who first impounded 
the same, upon demand, such refusal shall be sufficient evi- 
dence to convict such person of having released said crea- 
tures from the pound. Ibid., sec. 17. 

18. The pound-keeper, if there is any, otherwise the per- 
son impounding, shall cause the creatures impounded to be 
provided with food and drink suitable for such creatures, 
and upon neglect shall be liable to the owner for all dama- 
ges arising therefrom. Ibid., sec. 18. 

19. The sum to be allowed for sustenance of creatures 
impounded, shall be — for cattle and horses, above one year 
old, fifteen cents per day, and for all other creatures seven 
cents per day each. Ibid., sec. 19. 

20. The fees to be paid to the pound-keeper shall be five 
cents each for every creature impounded, except sheep, which 
shall be two cents each, including the putting in and letting 
out ; and the same fees in case of creatures retaken after 
pound breach. Ibid., sec. 20, 

21. The fees to the person impounding shall be six cents 
a mile for travel from the place of taking to the pound, and 
four cents a head for driving, if more than one mile; other- 
wise, two cents a head ; for each notice, twenty-five cents, 
and four cents a mile for travel from the pound to the place 
where such notice shall be given or left, and the same fees 
in case of creatures retaken after pound breach. lb., sec. 21 . 

22. If a man finds stray cattle in his field he is not bound 



POUNDS AND IMPOUNDING ANIMALS. 305 

to impound them or retain them for the owner, but may drive 
them off into the highway — 18 Pick. R., 227 ; but if he 
drive them, after they are in the highway, to a considerable 
distance, he will be a trespasser. 8 N. H. JR., 404. 

23. If any person shall wilfully or negligently suffer any 
ram belonging to him, or in his care, to go at large out of 
his enclosure between the first day of August and the first 
day of December, in any year, he shall forfeit, for every 
such offence, the sum of five dollars, for the use of any per- 
son who will sue for the same, or who shall impound such 
animal. R. S., ch. 128, sec. 3. 

Swine unlawfully at large upon the highways in any town 
cannot be legally seized and impounded on the Sabbath ; 
and a hog-reeve who seizes and impounds swine on that day 
is a trespasser. 4 N. II. R., 153. 

11 A vote of a town, to restrain cattle from going at large 
within the limits of the town, is binding on persons, not in- 
habitants, whose cattle are found so going at large. 

A turnpike road is a highway within the meaning of the 
statute restraining cattle from going at large." 4 Pick. R., 
258. 

The owner of a close is not obliged to fence but against 
cattle lawfully in the adjoining ground ; and if all his fence 
be insufficient, yet if cattle do not escape through the in- 
sufficient fence, but are turned in, he may lawfully impound 
them doing damage. 4 Mass. R., 471. 

" No action can be maintained by the owner of a field 
against the owner of cattle rightfully on an adjoining close, 
and straying therefrom through an insufficient fence upon 
such field, unless the fence has been divided, and the owner 
of the cattle is thereby or in some way legally bound to keep 
the fence in repair ; nor can the cattle be lawfully impound- 
ed for that cause. The person taking and impounding cat- 
tle without justifiable cause is liable to an action therefor. 
14 Maine R., 419. 

It is the duty of a party impounding cattle to feed and 
water them as often as is required according to the usage 
of the country and of good husbandry ; — where, therefore, 
a field driver, in warm weather, took up milch cows unlaw- 
fully going at large in the highway, and drove them to a town 
pound, and there restrained them from seven o'clock in the 
morning until five o'clock in afternoon, without giving them 



306 FLOATING TIMBER. 

food or water, it was held that he was a trespasser. 13 
Pick. R., 384. 

A private individual, who impounds a beast taken doing 
damage, in a town pound, is not liable for any injury which 
such beast may receive from cattle confined in the same 
pound. 9 Pick. R., 14. 



CHAPTER 63. 

OF FLOATING TIMBER. 

1. Timber on improved lands. I 7. Timber on unimproved land. 

2. Timber to be advertised. | 8. Illegal removal, penalty. 

3. Damages, how assessed. I 9. Stopping logs, &c, penalty. 

4. Forms of proceedings. | 10. Stealing timber, what is. 

5. Removal of timber, when. I 11. Rights of the owners. 

6. Forfeiture of timber. I 

1. Every owner of improved land shall have the right to 
detain all masts, logs or timber of any kind which shall be 
lodged thereon by the waters of any river or stream, until 
the damages occasioned to such land thereby, and by the 
removal thereof, and the expenses of advertising the same, 
shall be paid. R. S., ch. 138, sec. 1. 

2. Every such owner shall advertise all such logs and 
timber, in the month of September annually, by posting no- 
tices, describing the number thereof and the marks thereon, 
at one of the most public places in the same, and two ad- 
joining towns, and causing a like notice to be recorded by 
the town-clerk. Ibid., sec. 2. 

The form of such notice may be : 

To whom it may concern : 

Found lodged on my improved land, in the town of L., 
situate on the Ammonoosuc river, and bounded thus : (here 
insert description;) and left thereon by the waters of said 
river, ten logs, marked as follows, viz : (here insert the 
marks;) said logs are detained by me until the damages 
occasioned thereby, and my fees and expenses, are paid. 

L , September 1, 1843. U. W. 



FLOATING TIMBER. 



307 



Four of these notices are to be made, one to be posted 
up in the town in which the logs are found lodged, one in 
each of two adjoining towns, and the other left with the 
town-clerk. The posting up should be done by, or in the 
presence of, some person who can be a witness in the case, 
and some memorandum of the day of posting should bemade. 

3. If the owner or claimant of such logs or timber shall 
be dissatisfied with the damage and expenses demanded by 
the owner of such land, the selectmen, and in case a major- 
ity of them shall be interested, three justices, may on appli- 
cation, and after reasonable notice to the other party, assess 
such damages and expenses. Ibid., sec. 3. 

4. The form of such application may be : 

To the Selectmen of the town of L., in the County of G. 

Whereas sundry logs belonging to the subscriber, floating 
in the Ammonoosuc river, were lodged on the improved land 
of U. W., in said L., and are detained by him for the pay- 
ment of damages and charges, and the sum demanded by 
him being more than in my opinion is reasonable, you are 
requested to assess said damages and expenses, according to 
the law in such cases made and provided. J. O. 

L , October 30, 1843. 

The selectmen should appoint a time and place of hear- 
ing on said application, and give to the person detaining the 
logs reasonable notice thereof. The notice may be served 
by any person who is a competent witness, by giving or 
leaving the original notice and keeping a copy. The form 
of the notice may be : 

To U. W., ofL., in the County of G. 

You are hereby notified that application in writing has 
been made by J. O,, of D., in said county, to us, the sub- 
scribers, selectmen of said L., to assess the damages and 
expenses occasioned to your improved land in said L. by 
reason of certain logs, belonging to said J. O., which were 
lodged thereon by the waters of the Ammonoosuc river, and 
detained by you until said damages and expenses were paid, 
the sum demanded by you being in his opinion more than 
is reasonable ; and that we will meet, for the purpose of as- 
sessing your said damages and expenses, at the dwelling- 
house of A. B., in said L., on the sixth day of November 
instant, at one o'clock in the afternoon, when and where 
you may attend and be heard thereon. . 



308 FLOATING TIMBER. 

Given under our hands, this first day of November, 1843. 
R. T., H. J., M. N., Selectmen of L. 

The form of the assessment may be : 

Application in writing having been made by J. 0.,of D., 
in the county of G., to us, the subscribers, selectmen of the 
town of L., in said county, to assess the damages and ex- 
penses occasioned to the improved land of U. W., of said L., 
situate in said L., by reason of certain logs which were 
lodged thereon by the waters of the Ammonoosuc river, and 
detained by said U. W. until said damages and expenses 
should be paid; and the sum demanded by said U. W. of 
said J. O., being in his opinion more than was reasonable ; 
and having appointed the sixth day of November, 1843, at 
one o'clock in the afternoon, at the dwelling-house of 
A. B., in said L., as the time and place of making said as- 
sessment, and having caused said parties to be duly noti- 
fied thereof, and having attended at said time and place, and 
heard said parties and their evidence, we do assess the dam- 
ages occasioned to the improved land of said U. W. by said 
timber and by the removal thereof, at the sum of four dol- 
lars, and the expenses of advertising the same at the sum of 
two dollars. 

Given under our hands, this sixth day of November, 1843. 
R. T., H. J., M. N., Selectmen of L. 

No provision is made by the statute for the payment of 
the fees of selectmen ; but as the proceedings are for the 
sole benefit of the owner of the logs, they need not act 
until the fees are paid. 

5. On payment or tender of the damages and expenses 
so demanded or assessed, the owner of such logs and tim- 
ber shall have the right to remove the same at any time 
within seven months after such notice is posted up as afore- 
said. Ibid., sec. 4. 

6. If such logs or timber shall not be removed within 
said seven months, they shall be forfeited to the owner of 
the land, and he may convert the same to his own use, pro- 
vided they have been duly advertised as aforesaid. Ibid., 
sec. 5. 

7. If any logs, masts or spars of any person shall be lodg- 
ed on the unimproved land of any other person, they may 
be detained until the damages occasioned thereby and all 
costs are paid. Ibid., sec. 6. 



STRAYS AND LOST GOODS. 309 

8. If any such logs or timber shall be removed by the 
owner, or any other person, without payment or tender of the 
damages and expenses as aforesaid, he shall be liable to the 
owner of such land therefor and for costs, in an action to 
be commenced within one year, and not after. Ibid., sec. 7. 

9. If any person shall wrongfully stop any masts, spars, or 
logs of any other person, or prevent them from floating down 
any river or stream ; or if any person shall wilfully and fraud- 
ulently cut out or destroy the mark on such logs or timber, 
he shall be punished by imprisonment not more than thirty 
days or by fine not exceeding twenty-five dollars. Ibid., sec.8. 

10. If any person shall wilfully and fraudulently take and 
carry away, or otherwise convert to his own use, either per- 
sonally or by others in his employment and under his con- 
trol, any log or timber of another, being in any river or 
stream or on the banks or meadows adjoining the same, he 
shall be adjudged guilty of larceny, and punished by impris- 
onment not less than thirty days nor more than one year, 
or by confinement to hard labor not exceeding two years. 
Ibid., sec. 9. 

11. The provisions of this chapter are not unconstitution- 
al, and the title of the former owner to timber forfeited 
under it is wholly lost. 3 N. H. R., 325. But if the owner 
of the timber has removed it from the land on which it 
was lodged before the owner of the land took possession of 
it for the purpose of detaining it, the latter will have no 
right to seize it afterwards. He must " detain'''' it while on 
his land, or look to the owner of the timber for the dam- 
ages. 4 N. H. R., 344. 



CHAPTER 64. 

OF STRAYS AND LOST GOODS. 



1. Notice to town-clerk given. 

2. Town-clerk to record notice. 

3. Notices to be posted up. 

4. Property, how appraised. 

5. Oath and return of appraisers. 

6. Owner not appearing, reme- 
dy- 

7. Property, when given up. 

1. The person finding any money or goods, or finding 



8. Expenses, how adjusted. 

9. Owner liable for expenses. 

10. Neglect of finder, penalty. 

11. Neglect of town-clerk, pen- 
alty. 

12. When taken up as strays. 

13. Fees and charges. 



310 STRAYS AND LOST GOODS. 

and taking up any stray beast, the owner of which is un- 
known, shall give to the town-clerk a notice in writing, de- 
scribing the money, goods or beast, within six days after so 
finding and taking up the same. R. S. } ch. 139, sec. 1. 

The form of such notice may be : 

To loliom it may concern : 

Notice is hereby given, that on the first day of May, 1843, 
I found doing damage in my enclosure, near my dwelling- 
house in the town of C, in the county of C, one red heifer, 
about three years old, with a white spot on her left rump, 
(or, one buffalo skin, marked D. L. } ) the owner of which 
is to me unknown. W. B. R. 

C , May 2, 1S43. 

If the creature found is a horse or mule, or if any crea- 
ture is found between the first day of November and the 
first day of April, the words, " doing damage in my enclos- 
ure" need not be inserted. See sec. 12. 

2. The town-clerk shall record such notice in a book to 
be kept by him for that purpose. Ibid., sec. 2. 

3. The finder of such property shall, within six days after 
finding or taking up the same, post up a notice describing 
the money, goods or beast, at two public places in the town 
where the same was found ; and if the value thereof exceed 
five dollars, at some public place in each of two adjoining 
towns, or cause a copy of such notice to be published three 
weeks successively in some newspaper circulated in such 
towns. Ibid., sec. 3. 

The notice posted or published may be the same as that 
given to the town-clerk in sec. 1. 

4. If no owner shall appear within one month after notice 
given as aforesaid, the finder shall apply to a justice, who 
shall appoint three persons to appraise such property, unless 
the same be money. Ibid., sec. 4. 

The form of such application may be : 
To A. B., one of the Justices of the Peace in and for the 
County of C. 

Whereas the subscriber, of C, in said county, on the first 
day of May, 1843, found in my enclosure, near my dwelling- 
house in said C, one red heifer, about three years old, with 
a white spot on her left rump, the owner of which is un- 
known ; and on the next day I gave a written notice thereof 



STRAYS AND LOST GOODS. 311 

to the town-clerk of said C, and also on the same day post- 
ed up like notices at the tavern of A. L., and the store of 
C. G., both in said C, and public places, and also at the 
tavern of R. P., in the town of H., and at the tavern of 
N. W., in the town of G., both in said county, and public 
places in said towns ; and although more than one month 
has elapsed since said notices were given and posted as 
aforesaid, yet no owner has appeared to claim said property ; 
you are therefore requested to appoint three persons to ap- 
praise said heifer, according to the statute in such case made 
and provided. W. B. R. 

C , June 3, 1843. 

The appointment of appraisers may be made on the ap- 
plication itself, in which case the form may be : 
To D. E., F. C. and L. Q., all of C, in the County of C. 
/^ur^lS£\ Upon considering the foregoing application, 
KjKj; f%5jy an( i by virtue of the authority in me vested, you 
^^jH^/ are hereby appointed and directed to appraise 
the property mentioned in said application, being first sworn 
to the faithful discharge of your duty, and to make return 
of your doings to me. 

Given under my hand and seal, this third day of June, 
1843. A. B., Justice of the Peace. 

5. The appraisers shall be sworn by the justice to the 
faithful discharge of their duty, shall appraise the property and 
make a return of their appraisal to the justice. Ibid., sec. 5. 

The form of the oath of the appraisers to be taken before 
the appraisal, and the certificate made on the back of the 
warrant, may be : 

C , June 3, 1843. Then appearing the said D. E., 

F. C. and L. Q,.,made oath that in appraising the property 
mentioned in the within warrant they would act faithfully 
and impartially, and to the best of their judgment. 

Before me, A. B., Justice of the Peace. 

The form of the appraisal to be made on the warrant, 
may be : 

The subscribers, appointed appraisers by the within war- 
rant, have carefully examined the property set forth therein, 
and do upon oath appraise the value of said heifer to be ten 
dollars, and no more. D. E. j 

F. C. > Appraisers. 

C , June 3, 1843. L. Q. j 



312 STRAYS AND LOST GOODS. 

6. If the owner of such property or beast shall not ap- 
pear and claim the same within one year after notice given 
to the town-clerk, the person finding or taking up the same 
may keep the property for his own use, upon paying to the 
town treasurer the residue of such money or the appraised 
value of such property or beast, after deducting the fees and 
expenses incurred. Ibid., sec. 6. 

7. The owner, within one year, upon paying or tender- 
ing to the finder a reasonable sum for the keeping, charges 
and fees incurred, shall be entitled to his property. Ibid., 
sec. 7. 

8. Any justice shall adjust and determine the amount of 
the fees and charges of the finder, clerk, appraisers and jus- 
tice, and the expense of keeping, on application of any per- 
son interested. Ibid., sec. 8. 

9. The owner of any stray beast shall be liable to the 
person taking up the same, for such fees, charges and ex- 
penses, in case the beast should die without the fault or neg- 
ligence of the finder. Ibid., sec. 9. 

10. If any person finding any property or taking up any 
stray beast, shall neglect to give notice to the town-clerk, or 
to post up notices as before prescribed, or to cause such ap- 
praisal to be made, he shall receive nothing for his services 
or expenses, and shall forfeit a sum equal to double the val- 
ue of the property found or beast taken up. Ibid., sec. 10. 

11. If any town-clerk shall omit to record any notice as 
aforesaid, or if any person shall pull down or destroy any 
notice so posted, till the purpose thereof is answered, he 
shall forfeit the sum of thirty dollars. Ibid., sec. 11. 

12. No beast except horses and mules, shall be taken up 
as a stray from the first day of April to the first day of No- 
vember in any year, unless the same shall be found doing 
damage in some enclosure. Ibid., sec. 12. 

13. The fees for notifying the clerk shall be twenty-five 
cents ; for each advertisement twenty-five cents ; for record- 
ing the notice ten cents ; for appointing appraisers twenty- 
five cents ; for receiving and recording the appraisal twenty- 
five cents ; for adjusting the charges and expenses, twenty- 
five cents. Ibid., sec. 13. 



TITLE II. 



DUTIES OF TOWN OFFICERS IN SPECIAL 
CASES. 

Chapter 65. Of the drawing of jurors. 
Chapter 66. Of the militia. 

Chapter 67. Of surveyors, weighers and measurers. 
Chapter 68. Of wild animals, dogs and sheep. 
Chapter 69. Special duties of town-clerks. 



CHAPTER 65 



OF THE DRAWING OF JURORS. 



1. List of jurors, how made. 

2. Number of names on list. 

3. Who are exempted. 

4. Names to be put injury box. 

5. Number of jurors ordered. 

6. Venires for jurors issued. 

7. Venire served on town-clerk. 

8. Notice of drawing given. 

9. Mode of drawing jurors. 
10. If juror drawn insane, &c. 



11. Name drawn excluded from 
box. 

12. Record of drawing made. 

13. Jurors to be notified. 

14. Venire to be returned, &c. 

15. Drawing on emergency. 

16. Penalty for neglect of clerk, 
&c. 

17. Penalty for neglect of jurors. 

18. Penalty on selectmen. 

19. Penalty on town-clerk. 



1. The selectmen of each town shall annually, in De- 
cember, make a list of such persons as they shall judge best 
qualified to serve as jurors ; and the list thus annually made 
by the selectmen shall be by them kept and delivered over 
to their successors in office. R. S., ch. 176, sec. 1. 

2. Such list shall not contain the names of more than fif- 
teen persons in towns containing less than one hundred and 



314 



DRAWING OF JURORS. 



fifty rateable polls ; twenty-five in all other towns contain- 
ing less than three hundred ; thirty in all other towns con- 
taining less than four hundred ; thirty-five in all other towns 
containing less than five hundred; forty in all other towns 
containing less than twelve hundred ; and forty-five in all 
other towns containing more than twelve hundred rateable 
polls. Ibid., sec. 2. 

3. The governor, secretary and treasurer of the state, 
judges and clerks of courts, register of probate, register of 
deeds, sheriffs and their deputies, counsellors and attorneys 
at law, ordained ministers and practising physicians and sur- 
geons, are exempted from serving as jurors, and their names 
shall not be placed on said lists. Ibid., sec. 3. 

4. The names on said li$ts shall be written upon separate 
and similar pieces of paper, which shall be so rolled up that 
the names cannot be seen, and placed in a box, to be pro- 
vided for that purpose by the selectmen, which shall be de- 
livered to the town-clerk, to be kept by him under lock. 
Ibid., sec. 4. 

5. The courts shall direct the number of jurors to be 
summoned, and from what towns, in such manner that each 
town may furnish its due proportion of jurors in each year. 
Ibid., sec. 5. 

6. The clerk of the court of common pleas shall issue 
writs of venire facias, directed to the clerks of such towns 
as the court may order, forty days before the sitting of such 
court, requiring each of them to cause to be selected and re- 
turned so many jurors as are therein mentioned. Ibid., sec. 6. 

7. The clerk shall cause such venires to be delivered to 
such town-clerks twenty-five days, or to the sheriff forty days 
before the sitting of the court; and the sheriff* shall cause all 
venires so delivered to him to be delivered to the town-clerks 
twenty-five days before the sitting of the court. Ibid., sec. 7. 

8. Each town-clerk, upon receipt of the venire, shall 
notify the selectmen of the time and place by him appointed 
for the selection of jurors, and post up a notice thereof in 
some public place in such town, seven days at least before 
the time so appointed. Ibid., sec. 8. 

The town-clerk should give notice to the selectmen per- 
sonally of the time and place appointed, either by stating it 
to them or by leaving a written notice at the usual place of 
abode, seven days at least before the day appointed. A written 
notice is preferable, or a copy of the notice posted, but not 



DRAWING OF JURORS. 315 

necessary. This is a change of the law. The form of the 
notice to be posted up may be : 

To the Inhabitants and Selectmen of the town of C, in the 
County of M. 

^p^\ You are hereby notified that a meeting will be 
l9g)|/ holden at the west meeting-house in said town, 
"im-j^ y on Tuesday, the twenty-fifth day of February 
instant, at two o'clock in the afternoon, for the selection of 
one grand juror and two petit jurors, (insert the number re- 
quired by the venire) to serve as such at the court of com- 
mon pleas to be holden at C, in and for this county, on the 
first Tuesday of March next. 

Given under my hand and seal, this eighteenth day of 
February, 1843. " R. M., Town-Clerk of C. 

This is to be posted up by the town-clerk, and afterwards 
preserved by him ; but it would be prudent for him to keep 
a copy, in case the original should be destroyed. 

The form of the return of service on the notice may be : 

M ss. This certifies that on the eighteenth day 

of February, 1843, I posted up the within notice at the 
west meeting house in said C, and on the same day gave to 
C. L., M. R. and F. P., selectmen of said town, notice to 
attend at the time and place, and for the purpose within 
mentioned. R. M., Toum-Clerk. 

9. At the time and place so appointed the town-clerk, in 
presence of the selectmen, whose duty it shall be to attend, 
and of such other persons as may choose to attend, shall 
draw from the box, held in such manner that the papers 
therein cannot be seen, the names of so many persons as 
are required by the venire. In the absence of the town- 
clerk one of the selectmen shall draw the same. Ibid., 
sec. 9. 

10. If any person whose name is so drawn has deceased, 
become insane, has removed from town, or is disabled by 
sickness, the town-clerk shall certify these facts on the venire, 
and draw another name. Ibid., sec. 10. 

11. The persons whose names are so drawn shall be re- 
turned to serve as jurors, and their names shall not be again 
placed in such box for the term of two years. Ibid., sec. 11. 

12. The town-clerk shall record the notice posted by him 



316 DRAWING OF JURORS. 

as aforesaid, the names of the selectmen present, and of the 
persons drawn as jurors. Ibid., sec. 12. 

The notice and certificate of service should be recorded 
at length, including the town-clerk's name, and attested, 
A true copy. Attest : R. M., Town-Clerk. 
Under this he should record the drawing, as follows : 
At the time and place appointed in the foregoing notice 
I attended, for the purposes mentioned therein, C. L. and 
F. P., selectmen of said town of C, being present, and then 
and there, in presence of said selectmen and others, the 
following persons were drawn to serve as jurors, at the court 
aforesaid, viz : 

W. B. G., as grand juror. 
H. C, as petit juror for the first week. 
L. S., as petit juror for the second week. 
• A true record. Attest : R. M., Town-Clerk. 

13. A notice in writing of his selection as a juror, of the 
court he is to attend, and of the day and hour he is to ap- 
pear, shall be given to each juror or left at his usual place 
of abode, four days at least before the sitting of the court, 
by the town-clerk or a constable. Ibid., sec. 13. 

The form of such notice may be : 

To W. B. G., of C. 

You are hereby notified that you have been duly selected 
as a grand juror from this town, and you are to attend at 
the court of common pleas to be holden at C, in and for 
this county, on the first Tuesday of March next, at ten 
o'clock in the forenoon, for that purpose. Fail not at your 
peril. 0i' R. M., Town-Clerk. 

If the person is selected as a petit juror for the second 
week, after the words "this town," insert, for the second 
week of the term ; also omit the words, " first Tuesday," and 
insert the day and hour on which he is to attend, as requir- 
ed by the venire. 

14. The town-clerk shall certify upon the venire the 
names of the persons so selected as jurors, and that they 
have been notified as aforesaid, and cause such venire to be 
returned to the clerk of the court at the hour at which the 
juror has been notified to attend. Ibid., sec. 14. 

The certificate upon the venire may be : 

M ss. This certifies that by virtue of the within 



DRAWING OF JURORS. 317 

venire, I appointed the twenty-fifth day of February, 1843, 
at two o'clock in the afternoon, at the west meeting-house 
in the town of C, in said county, as the time and place of 
drawing the jurors within directed; and on the eighteenth 
day of February, 1843, I gave notice of said time, place, 
and purpose to C. L., M. R. and F. P., selectmen of said 
town, and on the same day posted up at said meeting-house 
a notice thereof, under 'my hand and seal ; and at said time 
and place, the said C. L. and F. P. being present, and all 
such others "as chose to attend, W. B. G. was duly selected 
as grand juror, H. C. as petit juror for the first week, and 
L. S. as petit juror for the second week of the term of the 
court within mentioned ; and on the twenty-sixth day of 
February, 1843, I notified the said W. B. G., H. C. and 
L. S. severally of their selection, and of the place, day and 
hour at which they must attend, as within directed. 

R. M., Town-Clerk of C. 

15. Upon any emergency, jurors may be selected while 
the court is in session. The venires shall be issued and 
notice of the time and place of such selection given, and the 
jurors drawn and notified forthwith ; and the jurors so 
drawn and notified shall immediately attend the court. 

-a. Ibid., sec. 15. 

16. If any clerk, sheriff or town-clerk shall neglect to 
perform any of the duties enjoined by this chapter, he shall 
be fined by the court in the sum of twenty dollars. Ibid., 
sec. 16. 

17. If any person selected as a juror, and duly notified 
to attend, shall, without sufficient cause, neglect to attend 
agreeably to such notice, he shall be fined by the court in a 
sum not exceeding twenty dollars. Ibid., sec. 17. 

18. If any selectman shall wilfully neglect to perform any 
duty required by this chapter, or shail put upon the list a 
greater number of names than is allowed by law, or shall . 
put on the list the name of any person at his own request, 
or on the request of any other person, or shall withdraw 
from the box the name of any person legally put upon the 
list, or shall be guilty of any fraud or collusion with re- 
spect to the drawing of jurors, he shall be punished By a fine 
of fifty dollars for each offence. Ibid., sec. 18. 

19. If any town-clerk shall draw from the box a greater 
number of names than is mentioned in the venire, except 



AA 



* 



318 



OF THE MILITIA. 



in cases provided, or shall put or suffer to be put in said box 
any name after the same is delivered to him as aforesaid, or 
shall be guilty of any fraud or collusion in respect to the 
drawing of jurors, he shall be punished by a fine of fifty 
dollars. Ibid., sec. 19. 



CHAPTER 66 



OF THE MILITIA. 



1. Payments by exempts. 

2. Tax on company not officer- 
ed. 

3. Equipments for poor minors. 

4. Payment to soldiers. 



5. Who are entitled. 

6. Certificate of full service. 

7. Certificate in special case. 

8. Rations at muster paid. 

9. Penalty for neglect. 



1. Persons conditionally exempted from military duty are 
required to pay two dollars, and persons conscientiously 
scrupulous of bearing arms three dollars, into the treasury 
of the towns in which they reside, on or before the twentieth 
day of April in each year, and the treasurer or selectman 
receiving it shall give a receipt for the same, and retain the 
money for the use of the town. R. S., ch. 76, sees. 2, 3. 

2. When the roll of any company which is without offi- 
cers shall be returned to the selectmen of the town in which 
the persons enrolled reside, the selectmen shall assess on 
each the sum of three dollars annually, so long as such 
company is unorganized, and issue their warrants therefor 
to the collector, who shall collect the same as other taxes 
are collected, and pay the same to the selectmen. R. S., 
ch. 77, sec. 9. One half of the money so collected shall be 
paid to the state treasurer, and the residue to the selectmen, 
for the use of the town. Ibid., sec. 10. 

3. The selectmen shall provide forthwith, at the expense of 
the town, necessary arms and equipments for every minor lia- 
ble to do military duty, whose parent, master or guardian is 
unable to furnish the same, and shall permit the captain to de- 



OF THE MILITIA. 319 

liver the same to such minor whenever his company is order- 
ed out for military duty ; and such captain shall be responsi- 
ble for the safe return of such arms and equipments to the 
place of deposit provided by such selectmen. R. S., ch. 
79, sees. 9, 10, 11. 

4. Every officer, non-commissioned officer, musician or 
private, who shall be fully equipped, and shall personally per- 
form all the duties required by law, shall receive, in the 
month of October annually, from the selectmen of the town 
in which he resides, the sum of one dollar for his services; 
but no person shall be entitled to receive said sum unless he 
is by law required to perform military duty, except such per- 
sons as have enlisted in some uniformed company. R. &., 
ch. 83, sec. 1. 

5. No person shall be entitled to such payment unless he 
shall present to the selectmen satisfactory evidence, under 
oath of the commanding officer of the company, regiment or 
brigade to which he belongs, that he has so performed his 
duty. Ibid., sec. 2. 

The form of the certificate required in sections 5 and 6 
may be : 

This certifies that the following persons, duly enrolled and 
liable to do military duty in the third company of infantry 
in the town of H., commanded by the subscriber, captain 
thereof, have been fully equipped, and have faithfully and 
properly performed in person all their duties in said com- 
pany during the past year, viz. A. B., C. D. ; (here insert 
all the names.) 

And I further certify that said list contains the names of 
no persons who have not been equipped and have not per- 
formed all their duties in the manner aforesaid. 

G. W. P., Captain. 

H ss., October 10, 1843. Then the said G. W. P. 

appearing, made oath that the foregoing certificate, by him 
subscribed, is in his belief true. 

Before me, B. B., Justice of the Peace. 

If the certificate is for a single training (as in section 7,) 
omit the words, " during the past year," and insert instead, 
at the inspection of said company on the third Tuesday of 
May, 1843 ; or as the case may be. 

6. Every captain shall, in October annually, and after the 
annual muster, if there be any, make a list of the persons 



320 OF THE MILITIA. 

who have faithfully and properly performed all their duties 
in his company, and certify under oath that the said list 
contains the names of such persons and no others, and re- 
turn the same to the selectmen of the towns in which any 
of such persons may reside. Ibid., sec. 3. 

7. Every captain shall, upon request, certify under oath 
the several times which any person who has enlisted or re- 
moved into any other company, shall have faithfully perform- 
ed his duty under his orders ; and if the person has perform- 
ed all the duties required by law for the preceding year, 
although said duty may have been performed in different 
companies, such person shall be entitled to receive one dol- 
lar for his services. Ibid., sec. 4. 

8. The selectmen of each town and place shall pay to 
each officer, non-commissioned officer, musician and private 
of their respective towns, who shall be on duty at any regi- 
mental muster, fifty cents, to be there paid on parade ; and 
the captain of each company shall give notice to the select- 
men, six days before such muster, of the time and place 
thereof, and the number of men liable to do duty under his 
command. Ibid., sec. 5. 

The form of such notice may be : 

To the Selectmen of the town of N. 

You are hereby notified that the regimental muster for 
this regiment will take place at , in the town of C, in 

this county, on the twentieth day of September instant, and 
that the number of men liable to do duty in the third com- 
pany of infantry in said regiment, under my command, is 
sixty-five. 

N , September 12, 1843. T. S., Captain. 

9. The selectmen shall forfeit seventy-five cents for each 
person to whom they neglect to pay said sum of fifty cents, 
after being so notified, to be recovered by the captain, and 
by him paid over to the persons entitled thereto. Ibid., 
sec. 6. 



321 



CHAPTER 67 



OF SURVEYORS, WEIGHERS AND MEASURERS. 



13 



1. Surveyors and cullers chosen. 

2. Duty of surveyors. 

3. Duty of cullers. 

4. Plank, how measured. 

5. Ship timber, how measured. 

6. Fees of surveyors and cullers. 

7. Penalties for fraud, &c. 
Penalties for neglect. 
Cord-wood, how measured. 
Measurers to be chosen. 
Neglect of measurer, penalty. 
Standard weights, &c, pro- 
vided. 
Sealers to be chosen. 



14 



Weights and measures seal- 
ed. 

15. Measure of charcoal. 

16. Heaped measure regulated. 

17. Illegal weights, &c, penalty. 

18. Not procuring standards. 

19. Seal to be provided. 

20. Decimal hundred to be used. 

21. Weighers, how to weigh. 

22. Penalty for fraud. 

23. Weighers of cattle appointed. 

24. Beef cattle to be weighed. 

25. Fees of weighers. 

26. If not weighed, penalty. 



.1. One or more surveyors of lumber, and cullers of hoops 
and staves, shall be chosen by the inhabitants of each town at 
their annual meeting, who shall be skilled in such business, 
and shall hold their offices one year, and until others are 
chosen in their stead. R. S., ch. 106, sec. 1. 

2. The surveyor of lumber shall survey all plank, boards, 
spars, slitwork, shingles, clapboards and timber previous to 
the sale thereof, and shall measure the same, if necessary, 
having due consideration for drying and shrinking, mak- 
ing reasonable allowance for rots, knots and splits ; he 
shall mark the same anew to the just contents thereof, if re- 
quired by the seller or purchaser, and give a certificate of 
the quantity and sorts, if required, on payment therefor. 
Ibid., sec. 2. 

3. The cullers of hoops and staves shall view and cull all 
hoops, staves and heading, previous to the exportation there- 
of, and shall give a certificate of the quantities, on pay- 
ment therefor. Ibid., sec. 3. 

4. The standard of the thickness of merchantable plank 
shall be two inches ; and when any plank of a different thick- 
ness shall be purchased, it shall be admeasured and calcu- 
lated by that standard. Ibid., sec. 4. 

5. All round ship timber shall be measured according to 
the following rule, viz : a stick of timber sixteen inches in 



322 SURVEYORS, WEIGHERS AND MEASURERS. 

diameter and twelve inches in length, shall constitute one 
cubic foot, and in the same ratio for any other size and 
quantity; forty feet shall constitute one ton. Ibid., sec. 5. 

6. Surveyors and cullers shall receive the following fees: 
for surveying shingles and clapboards, four cents per thou- 
sand, to be paid by the buyer ; for viewing and culling barrel 
staves, twenty-eight cents per thousand ; for hogshead staves, 
thirty-four cents per thousand ; for pipe staves, forty cents 
per thousand ; for butt staves, forty-five cents per thousand ; 
for shooks, one third of a cent each ; for hoops, fifty cents 
per thousand, and for heading thirty-three cents per thou- 
sand ; the fees for such survey to be paid by the owner, and 
the fees paid for the survey of the merchantable to be by him 
recovered of the buyer ; for surveying boards, timber and 
other lumber, eight cents per thousand feet for viewing only ; 
and eight cents additional per thousand feet for measuring 
and marking ; and in the same proportion in all cases for 
a less quantity. Ibid., sec. 10. 

7. If any surveyor or culler shall be guilty of any fraud 
or deceit in the surveying or culling of any boards, staves, 
hoops, shooks, heading, shingles, clapboards or timber, or 
shall connive at, or allow of any breach of this chapter, he 
shall forfeit for each ofFence thirty dollars. Ibid., sec. 13. 

8. If any surveyor or culler shall unreasonably refuse or 
neglect to attend to his duties upon tender of the fees 
therefor, he shall forfeit for each offence three dollars. 
Ibid., sec. 14. 

9. All cord-wood exposed to sale shall be either four feet, 
three feet or two feet long, including half the kerf; and be- 
ing well and closely laid together, a quantity measuring 
eight feet in length, four feet in width and four feet in 
height shall constitute one cord. R. S., ch. 107, sec. 5. 

10. Measurers of wood shall be chosen by each town at 
the annual meeting, who shall be duly sworn, and whose duty 
it shall be to measure any wood, when requested, and give 
a certificate thereof; and for such measurement and certifi- 
cate he shall be paid at the rate of four cents per cord, to be 
paid by the purchaser. Ibid., sec. 6. 

11. If any measurer, upon tender of his fees, shall unrea- 
sonably neglect or refuse to measure or certify any wood so 
brought to him for that purpose, or shall give any false cer- 
cate, he shall forfeit for each offence five dollars. Ibid., 
sec. 11. 



SURVEYORS, WEIGHERS AND MEASURERS. 323 

12. The selectmen of each town, when necessary, shall 
provide, at the expense of such town, one complete set of 
weights and measures, and a scale beam, which shall be 
duly proved and sealed by the county sealer, and shall be 
kept and used as the standards for such town; and said 
standards shall be tried and proved by the county standards 
once in every five years. jR. S., cli. 110, sec. 4. 

13. Each town in this state at its annual meeting shall 
choose a sealer of weights and measures in and for said 
town, who shall be sworn to the faithful discharge of his 
duty, who shall hold his office for one year, and until some 
other person is chosen and qualified in his stead. Ibid., sec. 5. 

14. Such town sealer shall try and prove all scale-beams, 
steel-yards, weights and measures which shall be brought to 
him for that purpose, and shall seal all such as are agreeable 
to the town standards as aforesaid. He shall be paid for 
trying and proving, whether sealed or not, two cents for 
each scale-beam, steel-yard, weight and measure, except that 
after the first sealing he shall be paid one cent only for each 
so long as they continue just with the standard. Ibid., sec. 6. 

15. Every basket or other measure by which charcoal 
shall be measured or sold, shall not be less in its average 
diameter than twenty inches, and of a depth sufficient to 
contain eighteen gallons level measure, which shall be ac- 
counted two bushels, or one strike. Ibid., sec. 7. 

16. All measures by which meal, fruit and other things 
usually sold by heaped measure, excepting charcoal, shall 
be sold, shall be of the following dimensions : The bushel not 
less than eighteen inches and a half in diameter inside, the 
half bushel not less than thirteen inches and three quarters in 
diameter inside, the peck not less than ten and three quarter 
inches in diameter inside, and the half peck not less than 
nine inches in diameter inside. Ibid., sec. 8. 

17. If any person shall sell or dispose of any goods, 
wares, merchandize, grain or other commodities by any 
scale-beam, steel-yard, weights or measures, not proved 
and sealed as aforesaid, or shall fraudulently sell or dis- 
pose of any commodities by any scale-beam, steel-yard, 
weights or measures, which have been sealed but are un- 
just, he shall forfeit for each offence not less than one dollar 
nor more than ten dollars, one half thereof to the use of the 
prosecutor, the other half to the use of the town in which 
such offence is committed. Ibid., sec. 9. 



324 



SURVEYORS, WEIGHERS AND MEASURERS. 



18. If the selectmen of any town shall neglect to procure 
a set of weights and measures for such town, as is herein 
before provided, they shall forfeit one hundred dollars. 
Ibid., sec. 10. 

19. The town sealer shall use such seal as the town may 
agree on, a record of which shall be previously made in the 
town records. Ibid., sec. 11. 

20. When any commodity shall be sold by the hundred 
weight, it shall be understood to mean the net weight of one 
hundred pounds avoirdupois ; and all contracts concerning 
goods sold by weight shall be construed accordingly. Ibid., 
sec. 12. 

21. Every public or town weigher of goods or commodi- 
ties shall weigh the same according to the provisions of the 
preceding section, and make his certificate accordingly. 
Ibid., sec. 13. 

22. If any such weigher shall offend against the provis- 
ions of the preceding section, he shall forfeit a sum not 
exceeding five dollars, one half to the use of the town, the 
other half to the use of the prosecutor. Ibid., sec. 14. 

23. The selectmen of every town where beef cattle are 
sold, for the purpose of market or barrelling, shall appoint 
one suitable person or more, who shall be conveniently sit- 
uated in such town, and not dealers in cattle, to be weighers 
of beef, who shall be sworn to the faithful discharge of the 
duties of said office. R. S., ch. 100, sec. 26. 

24. All beef sold as aforesaid shall be weighed by such 
sworn weigher, and a certificate of the weight of all the 
beef, hide and tallow of each head of cattle, unless other- 
wise requested by the seller, in the form following, shall be 
signed by such weigher, and delivered to the seller on pay- 
ment of the fees therefor : 

Form of Certificate. 
This certifies that I have fairly and properly weighed the 
cattle bought by of from of this 

day of 18 . 



Number of head. 



Beef. 



Hide. 



Tallow. 



Total weight. 



, Sworn Weigher, 



WILD ANIMALS, DOGS AND SHEEP. 325 

25. The weigher shall receive for the first six head of 
cattle weighed, seventeen cents per head ; for the second 
six head weighed, twelve and a half cents per head ; for all 
over twelve and under twenty head, eight cents per head ; 
and for all over twenty head, five cents per head, which 
shall be paid by the buyer of such cattle ; and twelve and a 
half cents for each certificate, which shall be paid by the 
seller. Ibid., sec. 28. 

26. If any butcher or purchaser of beef cattle intended 
for market or barrelling, shall cause any such beef cattle to 
be weighed contrary to the intent of this chapter, he shall 
forfeit fifty dollars for each offence, to be recovered by action 
of debt, one half to the use of the prosecutor, and the other 
half to the use of the county ; but nothing herein contained 
shall prevent any person from buying or selling cattle on the 
hoof, or from determining the weight of such cattle in any 
mode agreed on by the parties. Ibid., sec. 29. 



CHAPTER 68 



OF WILD ANIMALS, DOGS AND SHEEP. 



1. Bounty on wolves. 

2. Bounty on bears. 

3. Bounty on wildcats. 

4. Bounties paid by state. 

5. Dogs without collars killed. 



6. By-laws for dogs made. 

7. Furred animals protected. 

8. Brand or mark of sheep. 

9. Altering mark, penalty. 



1. If any person shall kill any wolf, or wolf's whelp with- 
in this state, and shall produce the head thereof to the select- 
men of the town within which it was killed, or if there be 
no selectmen in such town, then to the selectmen of the 
nearest town having such officers, and shall prove to the sat- 
isfaction of such selectmen that such wolf, or wolf's whelp 
was killed by himself, or by some person whose agent he is, 
the selectmen shall cut off the ears from the head so pro- 
duced, and shall otherwise so disfigure the same that it shall 



326 WILD ANIMALS, DOGS AND SHEEP. 

never again be offered for a bounty, and shall pay to such 
person or his order twenty dollars for every wolf, and ten 
dollars for every wolf's whelp killed as aforesaid. R. S., 
ch. 127, sec. 1. 

2. If any person shall kill any bear within this state, and 
shall proceed with the same as is directed in the first section 
of this chapter, he shall receive therefor the sum of two 
dollars. Ibid., sec. 2. 

3. If any person shall kill any wild-cat, known by the 
name of Siberian Lynx, within this state, and shall proceed 
with the same in the maimer directed in the first section of 
this chapter, he shall receive therefor the sum of one dollar. 
Ibid., sec. 3. 

4. The selectmen of every such town shall keep a true 
account of the moneys so paid, and the number of each spe- 
cies of animal for which bounties have been paid ; and upon 
the presentation of such account, certified by a majority of 
such selectmen to be just and true, to the treasurer of the 
state in the month of June, the same shall be paid from the 
state treasury, either to the representative of such town, or 
to the selectmen thereof or their written order. Ibid., sec. 4. 

The form of such account may be : 
The State of New-Hampshire, to theTown of Colebrook, Dr. 
1843. 
April 1. To cash paid A. B., for bounty on 

one wolf, - - - $20.00 

April 10. To cash paid C. D., for bounty 

on a Siberian lynx, - - 1. 00 

April 12. To cash paid E. F., for bounty 

on one bear, - - - 2.00 

April 15. To cash paid G. H., for bounty on 

three wolves' whelps, - - 30.00 

$53.00 

We, the subscribers, selectmen of said town of Colebrook, 
hereby certify that the foregoing account is just and true; 
that said sums were paid by said town as therein stated, and 
that the heads of the animals therein mentioned were 
brought to us, and by us disfigured according to law, and 
that in our opinion said bounties were justly due. 

D. P. i Selectmen 
L.R. \ of 

E. M. j Colebrook. 



DUTIES OF TOWN-CLERKS. 327 

5. No person shall be liable by law for killing any dog 
which shall be found not having around his neck a collar of 
brass, tin or leather, with the name of the owner or owners 
carved or engraved thereon. Ibid., sec. 5. 

6. Any town may make by-laws for licensing, regulating 
or restraining dogs, as they shall deem expedient, and may 
affix penalties for the violation thereof, not exceeding five 
dollars, and the sum to be paid for any license, not exceeding 
two dollars. Ibid., sec. 6. 

7. If any person shall, at any time between the thirtieth 
day of May and the first day of November, in any year, by 
shooting, trapping or otherwise, kill or destroy any beaver, 
mink, otter or musk-rat, he shall forfeit for every mink or 
musk-rat so killed one dollar, and for every beaver or otter 
so killed five dollars, to be recovered by action of debt in 
the name and to the use of any person who will sue there- 
for. Ibid., sec. 7. 

8. Any person may mark in the ear, or brand his sheep, 
as he may think proper, and cause a description of such 
mark or brand to be recorded by the town-clerk of the town 
in which he resides, or in which his sheep may be kept, and 
the town-clerk shall be entitled to receive six cents for re- 
cording the same. R. S., ch. 128, sec. 1. 

9. If any other person shall wilfully alter, cut out or 
deface the mark or brand of any such sheep, or if any per- 
son, under pretence of marking the same, shall cut off the 
ear or ears of any sheep, he shall forfeit five dollars for every 
such offence, to the use of any person who will sue for the 
same. Ibid., sec. 2. 



CHAPTER 69 



SPECIAL DUTIES OF TOWN-CLERKS. 



1. Personal mortgages recorded. 

2. Contracts, when recorded. 

3. Attachments filed. 

4. Transfers of shares. 



5. Births and deaths recorded. 

6. Marriages published, &c. 

7. Fees of town-clerks. 

8. Form of record or copy. 



1. Every town-clerk shall keep a book of records for 



328 DUTIES OF TOWN-CLERKS. 

personal mortgages, at the expense of the town ; shall record 
therein any mortgage, transfer, consent or discharge, or 
give a certified copy thereof, when requested, upon payment 
of the fees therefor ; shall certify the time when the same 
is received and recorded, and keep an alphabetical index of 
mortgagers and mortgagees, which records and index shall 
be open to public inspection. R. S., ch. 132, sec. 12. 

The mortgage and the oath upon it should be recorded at 
length, and attested under the record, thus — 

A true copy. Attest : R. M., Town-Clerk. 

A certificate of the recording should be made on the back 
of the mortgage, the form of which may be : 

N , May 21, 1843. Received this day, at ten o'clock 
in the forenoon, and recorded in the records of said town, 
by me. 

R. M., Town-Clerk. 

2. The town-clerk shall receive, whenever delivered, every 
copy of a contract for building or repairing any building or 
vessel, in any town in which the chapter relating to " the 
liens of mechanics and others" is in force ; shall minute 
thereon the time when received, and keep the same on file, 
for which he shall receive seventeen cents. R. S., ch. 133, 
sec. 5. The contract need not be recorded, but kept on file 
only, and the " minute" made thereon may be — May 23, 
1843: Received this day, and filed. R. M., Town- Clerk. 

3. Attachments of real estate, and of personal property 
in certain cases, are made by leaving with the town-clerk a 
copy of the writ. The town-clerk should make a minute 
on such copy of the time when received, and file the copy 
away safely, as in the preceding section. 

4. Every corporation hereafter created, (after Dec. 23, 
1843,) within five days from the time when it shall be organ- 
ized for business, shall cause to be delivered to the town- 
clerk of the town in which the company has its principal 
place of business, or left at his dwelling-house, a list of the 
names and places of residence of all its stockholders, the 
number of shares owned by each, and the amount of capital 
actually paid in, in cash, by each stockholder, certified un- 
der oath by the cashier, clerk or one of the directors of the 
company to be a full and correct list thereof. 

From and after the time in which such list is required to 



DUTIES OF TOWN-CLERKS. 329 

be so left, no sale, transfer or assignment by any stockholder 
of his stock, shares or interest in the capital of such com- 
pany, shall be good and effectual for the purpose of exon- 
erating him from his personal responsibility for the debts 
and liabilities of such company afterwards contracted or 
incurred, unless the same be in writing, and recorded in the 
office of the town-clerk of the town in which such principal 
place of business is located. 

It shall be the duty of every such town-clerk to record 
and keep on file all such lists, and to record all deeds and 
instruments of sale, transfer and assignment of such stock, 
shares or interest, which may come to his hands for that 
purpose ; for which service he shall be entitled to receive 
from the person or corporation requiring the service to be 
performed the same fees allowed by law for recording mort- 
gages of personal property. R. S., ch. 146, sees. 6, 7, 8,9. 

The duties of the town-clerk in this case are similar to 
his duties in the case of personal mortgages. He should 
record the transfer and attest it, stating the time when re- 
ceived, and keep the original on file. It would be conve- 
nient also to keep an index of the persons by and to whom 
shares are transferred. 

5. The clerk of every town shall record every birth and 
death in such town which shall come to his knowledge, stat- 
ing the time when such event took place, and the names of 
the parents, if known ; and shall receive therefor three cents, 
to be paid by such town. Every parent, person next of kin, 
house-holder, and keeper of any alms-house, poor farm or 
prison, shall give notice to such clerk of every birth or 
death which shall take place in their respective families or 
house in such town. 

' If any such person, whose duty it is to make such return, 
shall neglect so to do for the space of one year, he shall for- 
feit one dollar for each offence, to be recovered by action of 
debt in the name and to the use of such town, and the select- 
men shall prosecute the same. R. S., ch. 126, sees. 1,2, 3. 

6. All persons residing in this state proposing to be joined 
in marriage shall have their intention published on three pub- 
lic meeting days in the respective towns where the parties 
dwell, by the clerks of such towns. If either party lives in 
a town where there is no clerk, such publishment shall be 
made in some town next adjoining. R. S., ch. 147, sec. 4. 
The town-clerk shall give a certificate of such publishment to 



330 DUTIES OF TOWN-CLERKS. 

the party applying, the fee for which is fifty cents. lb., sec. 5. 

The form of such certificate may be : 

This certifies that on three public meeting days in the 
town of C, in the county of H., I published the intention 
of L. P., of M., in the county of G., in this state, and E. W., 
of said C, to be joined in marriage. 

C , May 1, 1843. R. M., Town-Clerk of C. 

Every person who solemnizes any marriage is required 
to make and keep a record thereof, and to " return a copy 
of such record to the town-clerk of the town in which he 
lives, in the month of March, in each year, a copy of such 
record, containing the christian and surname of all persons 
who have been joined in marriage by or before him since 
his last return, the place of abode of each, and the date of 
such marriage." R. S., ch. 147, sec. 9. " Every town- 
clerk shall record, in the book of records of such town, 
every certificate of marriage returned to him as aforesaid, 
and shall receive from the town six cents for each marriage 
so recorded, as a fee for recording the same." Ibid., sec. 
10. The penalty for any neglect is five dollars. Ibid., sec. 11. 

7. For the fees of town-clerks, see page 32. 

The town-clerk shall make out a statement of the items 
of his fees, and receipt it on demand. If he refuses to give 
such statement he forfeits twenty dollars, to the use of the 
town ; and if he takes illegal fees he forfeits fifty dollars, 
to the use of the county. R. S., ch. 229, sees. 3, 1 7, 18, 27. 

If the town-clerk makes any false record or copy of a re- 
cord he is liable to be punished by confinement in the state 
prison. R. S., ch. 217, sec. 18. 

8. If the town-clerk (or any clerk,) is recording the pro- 
ceedings of any meeting, he should write it out in full, stat- 
ing all the motions and votes, and always sign his name at 
the bottom, thus : Attest: R. 31., Town- Clerk. A record 
which is not signed by the clerk is not evidence. 

The proper mode of recording a paper is to copy the pa- 
per in full, including all names and dates, and if there is a 
seal upon it make a mark for it in the corresponding place 
in the record, thus :•• (L. S.) At the end he should add in 
all cases — A true copy. Attest: R. 31., Town-Clerk. 

If he wishes to make a copy of a record, he should copy 
the paper in full, and also the words. " a true copy. Attest : 
R. M., Town-Clerk," and add at the bottom of all, 

A true copy of record. Attest: R. M., Town-Clerk. 



APPENDIX. 



FORM OF RECORDS OF TOWN MEETING. 

The town-clerk should first record the warrant for the meeting, and 
the return of posting up at length, making a scroll or mark, with the 
letters, (L. S.) for the place of the seal, and put his attestation at the 
bottom: A true copy : Attest : R. M., Town- Clerk. 

He should then record the proceedings of the meeting, the general 
form of which may be : 

At a legal town meeting, duly notified and holden at N., in the 
county of H., on Tuesday, the fourteenth day of March, in the year 
eighteen hundred forty-three, the legal voters of said town, by major 
vote and by ballot, 

Chose C. G. A. moderator to preside in said meeting, who being 
present took the oath of office by law prescribed. 

Chose R. M. town-clerk, who being present took the oath of office 
by law prescribed. 

Chose A. M., T. P. and F. S. selectmen of said town, who being 
present severally took the oath of office by law prescribed. 

Chose L. C. B., H. J. and D. P. superintending school committee 
of the town, &c. (Here insert all the town officers who are chosen 
by ballot.) 

The following votes of the inhabitants of said town qualified to 
vote for senators, were given in for governor, for counsellor and for 
senator, for register of deeds, county treasurer and three road com- 
missioners, and were received in presence of the selectmen of said 
town, in open meeting, by the moderator thereof, who in said meet- 
ing, in presence of said selectmen and of the town-clerk of said town, 
sorted and counted said votes, and at the close of the poll made a 
public declaration of the whole number of the tickets given in, the 
name of every person voted for, and the number of votes for each 
person, which was as follows : 

For Governor. 

For A. B., one hundred and ten votes. 

For C. D., ninety-six votes. 

For E. F., ten votes. 

For Counsellor. 

For G. H., one hundred votes. 

For I. J., ninety-eight votes. 

For K. L., two votes. 



332 APPENDIX. 

For Senator. 
For M. N., one hundred and five votes. 
For O. P., one hundred and one votes. 

For Register of Deeds. 
E. B. had one hundred votes. 
J. L. had fifty votes. 
A. W. had one hundred votes. 

For County Treasurer. 
N. P. had one hundred votes. 

D. S. had one hundred votes. 

For Road Commissioners. 
A. B. had one hundred and five votes. 
C. D. had one hundred and two votes. 

E. F. had one hundred and ten votes. 
G. H. had ninety-eight votes. 

I. J. had ninety-nine votes. 

K. L. had one hundred and one votes. 

M. JN. had six votes. 

The whole number of tickets given in at said meeting for said officers 
respectively was as follows : for governor, two hundred and sixteen ; 
for counsellor, two hundred ; for senator, two hundred and six ; for 
register of deeds, two hundred and fifty ; for county treasurer, two 
hundred, and for road commissioners two hundred and twelve. 

The alphabetical list of all the inhabitants of said town, qualified 
to vote for senator, having been lodged with the clerk of said town, 
and posted up at the town-house in said town, fifteen days prior to 
said fourteenth day of March, and the name of each voter having 
been checked by the town-clerk on said list during the balloting, the 
votes of the inhabitants of said town qualified as aforesaid, given in 
for a representative to represent said town in the general court of 
said state, were received in the presence of the selectmen, in open 
town-meeting, by the moderator thereof, who in presence of said 
selectmen and of the clerk of said town, sorted and counted the same, 
and at the close of the poll made a public declaration of the whole 
number of tickets given in, the name of every person voted for. and 
the number of votes for each person, which was as follows : 

A. B. had one hundred and ten votes. 

C. D. had one hundred votes. 

E. F. had three votes. 

L. T. had one vote. 

The whole number of tickets given in was two hundred and four- 
teen. 

And the said A. B. having a majority of all the tickets given in, 
was declared by the moderalor to be elected representative for the 
ensuing year. 

The following votes of the inhabitants of said town, present and 
qualified to vote for representatives to the slate legislature, were given 
in by ballot for four persons to represent this state in the Congress of 
the United States for the term of two years from and after the third 
day of the said month of March, and were received in presence of 
the selectmen of said town, in open meeting, by the moderator thereof, 



APPENDIX. 



333 



who, in said meeting, in presence of said selectmen and the clerk of 
said town, sorted and counted said votes, and at the close of the poll 
made a public declaration of the whole number of tickets given in, 
the name of every person voted for, and the number of votes for each 
person, which was as follows : 

For A. B., one hundred votes. 

For C. D., one hundred votes. 

For E. F., one hundred and two votes. 

For G. H., ninety-eight votes. 

For 1. J., ninety votes. 

For K. L., ninety-two votes. 

For M. N., eighty-eight votes. 

For O. P. eighty-nine votes. 

For R. S., eight votes. 

For T. U., five votes. 

The whole number of tickets given in for representatives to con- 
gress at said meeting, was two hundred and five. 

And the inhabitants of said town, legal voters therein, present at 
said meeting, by major vote, 

Chose T. M. collector of taxes, who being present took the oath of 
office by law prescribed. 

Chose A. B., C. D., (here insert all the other town officers.) 

Voted, to raise the sum of four hundred dollars, for the repair of 
highways and bridges the ensuing year. 

Voted, to raise the sum of five hundred dollars to defray the neces- 
sary charges and expenses of the town for the ensuing year. 

(Here insert all the votes of the meeting.) 

A true record : Attest: R. M., Town-Clerk. 

It will be observed that this record is the same as the returns of 
votes on pages 56, 58, 60, 61 and 66. The return'should always be a 
copy of the record, attested by the town-clerk as in those forms. 

If there should be no choice of a representative to the general 
court at the first balloting, the form of the return should be altered, 
by inserting at the end of the list of votes for that office the follow- 
ing words — And no person having a majority of all the tickets given 
in, it was declared by the moderator that there was no choice : 

Whereupon the inhabitants, qualified as aforesaid, proceeded to a 
second balloting, and the name of each voter having been checked 
by the town-clerk on said list during the balloting, the votes, &c. 
(Here insert the whole of the remainder of the form just given.) 

If the meeting is adjourned, and the election takes place on the 
next day, the form of the record may be found on pages 68, 69. 

Town-clerks should observe that some changes have been made in 
the law recently, so that the old forms are not correct. A little care 
will enable them, however, to make a correct record or return. 
Much carelessness has prevailed in this respect, and great hazard 
and inconvenience have often resulted from it. A few years since 
more than half of all the returns of votes made to the secretary of 
state were incorrect in some respect. Town-clerks may now be re- 
quired to attend at Concord at their own expense, and. correct all errors 
in their records and returns, and this authority is often put in force. 
Such an exposure is not only mortifying to the officer, but often ex- 
poses him to the charge of unfitness or dishonesty, all which may be 
prevented by a little care and reflection. 



334 APPENDIX. 

II. 

THE liN VOICE AND TAX LIST. 

The taking of the invoice and the assessment of taxes are among 
the most laborious and difficult duties of selectmen. It is^ however, 
a simple matter after the invoice book is ready for use. Printed 
blanks may now be readily procured at a small expense, which will 
save much trouble in ruling and writing ; if printed blanks are not 
used, the following form may be adopted. (See page 336.) 

Chapter 17 shows ichat property is to be taxed, and no kind of 
property not contained in that chapter is to be set down in the in- 
voice. In chapter 18 may be found the town in which, and the per- 
son to whom property is to be taxed, and in chapters 20 and 21 the 
mode of taxation. 

After the invoice is completed, the first step is to add up and carry 
out the total value of the taxable property of every person whose 
name is found in the invoice. This is to be set down in the column 
headed Total Value, against his name. In the assessment of taxes all 
property, real and personal, is to be valued at one half of one per 
cent, of its appraised value, as set down in the invoice, and polls at 
one dollar and fifty cents each, (which is equivalent to three hundred 
dollars of taxable property.) This half of one per cent., with the 
addition of one dollar fifty cents for the poll whenever taxed, is called 
the Reduced Value, and is to be made out and set down in the column 
headed Reduced Value, against every man's name. This should be 
done with great care, and the whole amount in that column added up 
and ascertained. 

As an illustration, take the name of Gideon Patch, in the form 
given. He is taxed for 1 poll ; land, $4,000 ; buildings, $600 ; stock 
in trade, $100 ; carriages, $50 ; 1 horse, $50 ; 6 cattle, $150.00, and 
10 sheep, $20. The total value of the property as set down in the 
invoice is $4,970. One half of one per cent, on this sum is 24.85, to 
which add $1.50 for his poll, and the reduced value of his poll and 
estate is $26.35. This is the sum upon which his taxes are to be 
assessed. 

The next step is to ascertain the amoant of the sum to be assessed 
in one assessment. " The selectmen may include in one assessment 
the state, county, town and school taxes, or so many of them as may 
be found convenient." See page 85. This amount should be com- 
pared with the total amount of the reduced value as just ascertained, 
and the object is to find how much on a dollar is to be assessed on 
the reduced value. This is to be done by the rule of three, and the 
sum will be : as the amount of the reduced value is to the amount of 
the tax to be assessed, so is one dollar to the answer, or proportion. 

As an explanation of the rule we will suppose that the amount of 
the reduced value of taxable property, including polls, in a town, is 
$2500.00, and that the tax to be assessed is $2000.00. The propor- 
tion in such case would be eighty cents on the dollar of the reduced 



APPENDIX. 



335 



value, and the poll tax would be one dollar twenty cents. The an- 
swer is found thus : 



2.500: 2.000:: i.00 
1.00 



2500 J 200000 ^80 
20000 



00 



Tax table : 80 cents on $1.00. 





$ 
100 


10.00 


$ 
1.00 


cents. 
.10 


cents. 
.01 


1 1 


SO 


8.00 | .80 


1 8 


1 -8 | 


1 a 


160 


16.00 | 1.60 


16 


1 1.6 | 


1 3 


240 


24.00 | 2.40 


24 


1 2.4 | 


1 4 


320 


32.00 | 3.20 


32 


1 3 - 2 1 


1 5 


400 


40.00 | 4.00 


40 


1 4 -0 1 


1 6 


480 


48.00 | 4.80 


48 


4.8 | 


1 7 


560 


56.00 j 5.60 


56 


1 5 -6 | 


1 8 


640 


64.00 | 6.40 


64 


1 6 - 4 | 


1 9 


720 


72.00 | 7.20 


72 


1 7 - 2 1 



After this proportion is found, it is convenient to make a scale, or 
tax table ; the above form, (which is made upon the foregoing 
proportion of eighty cents on the dollar,) is probably more convenient 
in practice than any other. The top line contains cents ; tens of 
cents, dollars, &c. The left hand line of figures, 1, 2, 3, &c, shows 
the number of cents, tens of cents, dollars, &c. Thus the right 
hand column contains the proportion on sums from one to nine cents ; 
the second column the proportion on sums from ten to ninety cents; 
the third, fourth and fifth columns severally the proportion on sums 
from one to nine dollars, from ten to ninety dollars, and from one 
hundred to nine hundred dollars of the reduced value. The tax on 
1 cent is 8 mills, on 2 cents is 1 cent six mills) &c. The tax on 10 
cents is 8 cents, on 20 cents is 16 cents, &c. In this mode the table 
is made. 

As an illustration : suppose the reduced value of the properly and 
poll of Gideon Patch, (see Invoice,) is $26.35, and you wish to find 
his tax on the above proportion. You look first for $20.00, and find it 
under the head of $10.00, and opposite figure 2, in the left hand col- 
umn, (or twice ten,) and the tax on $20.00 is $16.00. The tax on 
$6.00 is found under the head $1 .00, and opposite figure 6, (or six 
times one dollar) and the tax on it is $4.80. The tax on 30 cents is 24 
cents, and on 5 cents is 4 cents. Add these together, and the tax on 
$26.35 is $21.08. 

Or take another example. Suppose the total reduced value of polls 
and estate is $3,540.00, and the town tax is $1,800.00; the highway 
tax $400.00; the county tax $100.00 ; the state tax $360.00, and the 
school tax $600.00. If these sums are to be assessed separately the 
proportion or scale on the dollar would be, for town tax, 50 cents 8 
mills ; for highway tax 11 cents 3 mills ; for county tax 2 cents 8 
mills ; for school tax 17 cents, and for state tax 10 cents 1 mill; or in 
all 92 cents on the dollar. In practice the mills are not generally 
• used. Selectmen are authorized to. assess 5 per cent, extra, and the 
proportions used in the above case would probably be 51 cents, 11 
cents, 3 cents, 17 cents and 10 cents, or perhaps more. 



£o2HS 



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g. Stock in public funds. 



Stock in banks and 
other corporations. 



Money on hand, at in- 
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EL Stock in trade. 



EL Value of carriages. 



Horses, asses & mules 
over 18 months old. 



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APPENDIX. 337 



III. 



Since the first part of this book was printed, the last number of the 
New-Hampshire Reports, volume 9, has appeared, containing some 
decisions relating to town officers. 

COLLECTORS OF TAXES. 

If a collector of taxes has not taken the oath of office, he has not 
sufficient authority to act, notwithstanding he may have been duly 
elected ; and he is not in such cases protected by the statute of June 
1C, 1836, which provides that where collectors have taken the oath of 
office and given bond, they shall not be liable, except for their own 
wrong or illegal conduct. 

There are cases in which it may be submitted to a jury, to pre- 
sume, from a defective record of the election of a town officer, and 
from his having acted under the appointment, that the meeting was 
duly held, the proceedings of the town regular, and the officer duly 
sworn ; but this cannot be done where the proceedings are recent, 
and no cause is shown why the defective record cannot be amended, 
if the truth will warrant it. 

Where an inhabitant of a town is liable to taxation, and is duly 
assessed his proportion of the public taxes, which are collected by a 
collector de facto, he is not entitled to recover back the amount of the 
taxes, or the value of the property which may have been taken to 
pay them, merely because the collector did not take the oath of office. 
He is entitled to damages commensurate with the injury he has sus- 
tained ; and if he has in fact sustained no injury except in the col- 
lection of what was due from him by one who was an officer de facto, 
but not de jure, he can recover nominal damages only. But unless 
the tax has been legally granted, a collector de facto must in such 
case be answerable for the value of the property taken. 

If a collector seizes and attempts to sell property at auction, in sat- 
isfaction of a tax, and the sale fails because the bidder refuses to re- 
ceive a delivery, and complete the purchase, the collector may again 
seize and sell the property. 9 N. H. JR., 524. 



In order to gain a settlement under the eighth mode prescribed in 
the statute of January 1, 1796, the party must have been taxed for 
his poll seven years in succession. 9 A". H. J?., 573. 

TOWN-CLERK. 

A copy of the record of the marriage, from the town-clerk's office, 
duly certified, with proof of the identity of the party, is competent 
evidence. 9 A". H. R., 515. 

CONSTRUCTION OF STATUTES. 

The definitions of a few words used in the Revised Statutes are 
also given, which are to be applied to the words when found in the 
statutes, but not.when found elsewhere. 

cc 



338 APPENDIX. 

When any person is conscientiously scrupulous about swearing, 
an affirmation may be substituted for an oath. Holding up the right 
hand is omitted. R. S., ch. 15, sec. 4, 5, 6. 

The form of the affirmation administered to town officers, maybe : 

You solemnly affirm that you will well, faithfully and impartially 
discharge and perform all the duties incumbent on you as a , 

according to the best of your abilities, agreeably to the rules and reg- 
ulations of the constitution and laws of the state of New-Hampshire. 
This you do under the pains and penalties of perjury. 

Every word importing either the singular or plural number, may 
extend and be applied to one, or more tha n one person or thing. R. S., 
ch. l,sec. 1. 

Every word importing the masculine gender, may extend and be 
applied to females. Ibid., sec. 2. 

The word town may be construed to extend and be applied to any 
place incorporated, or the inhabitants of which are required to pay 
any tax, and may mean that town in which the subject matter is 
situate, or in which the persons referred to are resident, Ibid., sec. 4. 

The word inhabitant may be construed to mean a resident or person 
dwelling and having his home. Ibid., sec. 5. 

The words annual meeting, when applied to towns, may be con- 
strued to mean the annual meeting required by law to be holden in 
the month of March. Ibid., sec. 6. 

The words month and year shall be construed to mean a calendar 
month or year, unless otherwise expressed ; and the word year shall 
be equivalent to the expression, " Year of our Lord." Ibid., sec. 7. 

The word person may extend and be applied to bodies politic and 
corporate, as well as to individuals. Ibid, sec. 8. 

To words land, lands or real estate shall be construed to include 
lands, tenements and hereditaments, and all rights thereto and inter- 
ests therein. Ibid., sec. 17. 

The words written, or, in writing, may include printing, excepting 
when the written signature of a person is required. Ibid., sec. 19. 

When any court, officer or board is named by their official title, 
such designation shall be construed to apply to the court, officer or 
board of the county, town or district within and for which they are 
qualified to act in such capacity. Ibid., see. 24. 

When time is to be reckoned from any day, date, act done or the 
time of any act done, either by force of law or by virtue of any con- 
tract hereafter made, such day, date, or the day when such act is done, 
shall not be included in such computation. Ibid., sec. 25. 



MDEX. 



As a table of contents is inserted, it was thought that a minute 
index was unnecessary. The references are made sometimes to the 
beginning of a chapter, in which case the abstract will direct to the 
proper sections, and sometimes from one page to another, between 
which there may be found numerous provisions on the subject. 



Abatement of taxes, 89 

Affirmation means oath, 338 

Agents Town, chosen, 28 

for vaccination, 267 

for highways, 139 

for perambulation, 37 
authority of, 33 

Aliens are not voters, 46, 49 

are rateable polls, 63 

penalty for voting, 52--55 
Animals, how taxed, 74, 77, 79 
wild, bounty on, 325 
protection of, 327 

dogs regulated, 327 
impounding of, 295 
strays, what are, 312 
by-laws for, 14 

fencing against, 292 
Appraisal of strays, 310 

of damage by logs, 307 
of cattle impound- 
ed, 298-303 
Apprentices, 229-233 
paupers bound 

as, 198-210 

county pauper 
as, 211, 212 

Arrest on town meeting day 

forbidden, 71 

by police officer, 251, 253 
Assessment of Taxes, 85-89 

general provisions, 105 
for building road, 136 

for schools, 166, 173 



Assessors, choice of, 27 
in unincorporated places, 15 

powers of, 28 

Ballot Boxes provided, 50 

Ballots, what are, 50 

how counted, 51-55 

Bastards, support of, 214-223 

settlement of, 189-197 

pauper, support, 197-210 

Bears, bounty en, 325 

Beasts, see Animals. 

Beavers protected, 327 

Beef, weighers of, 324 

Begging punished, 249 

Betting punished, 70,274 

Births to be recorded, 329 

Blanks for returns, 71 

Boards, survey of 321 

in highway, 142 

Bond of collector, 29, 30 

of treasurer, 29, 30 

Boohs for schools, 178 

Bounties, how paid, 326 

Bowling Alleys, 274 

Bridges, see Highways. 

town, by-laws for, 147 

toll, by-laws for, 148 

injuries to, 142 

taxation of, 74, 80 

Buildings in road, 142-147 

if decayed, 242-244 

if nuisances, 264-268 

taxation of, 74, 76 



340 



INDEX. 



By-laws for towns made, 14 

for poor farm, 198 

for house of correction, 248 
concerning dogs, 327 

against fire, 239 

for police, 244-248 

for bridges, 147, 148 

Carriages, taxation of, 74 

Cattle, see Animals. 
Charcoal, measure for, 323 

Check-list, posted up, 49 

how corrected, 50-55 

in classed towns, 64-68 
Children, see Minors. 

settlement of, 187-197 

bound out, when, 197-210 

to maintain parents, 199-210 

Clapboards, survey of, 321 

Classed Towns, list of, 65 

elections in, 64-69 

Collector of Taxes, choice, 28 

oath of office, 34-36 

powers and duties of, 28-33 

name returned to state 

and county treasurer, - 86 

fees of, 92, 99 

to collect school tax, 171,172 

extent against, 109-1 14 

action against, 105-109 

tax on residents to collect, 90 

on non-residents, 96 

rights of, 337 

Common Fields fenced, 294 

Complaints, how tried, 271 

in bastardy cases, 215 

in police cases, 271 

against taverners, 256 

Constable, choice of, 28-30 

oath of, 34-36 

powers and duties of, 28-33 

to warn meetings, 18 

return of, form, 19-22 

to keep order in meetings, 26 

to notify officers, 34-36 

in police cases, 251-255 

Contagious Diseases, 264 

Cordwood, measured, 322 

Corporations, towns are, 13 

school districts are, 152 

parishes are, 13 

Costs in criminal cases, 271 

Counsellors, choice of, 55 

return of votes for, 55-57 



County Officers, choice, 60 

County Paupers, 21C-214 

Cows, taxation of, 74, 77, 79 

Creatures, see Animals. 
Cullers of Hoops , &c, choice, 28 
duties and fees of, 321 

Damages by cattle, 295 

by floating timber, 306 

if fence insufficient, 292 

by laying out road, 118, 126 

by discontinuing road, 128 

by defect of road, 138 

Deaths to be recorded, 329 

Disorderly Persons, 249 

Distress for Taxes, 91-94 

Dogs, by-laws for made, 327 

without collar killed, 327 

Drunkards punished, 249 

guardian for, 226-228 

Elections, meetings 

for, 55,57,59,61,63,64 

how to be conducted, 49-55 

general provisions, 69-71 

of state officers, 55 

of county officers, 60 

of town officers, 27 

who are voters at, 45-49 

Electors of President, &c, 59 

Enginemen appointed, 240 

duties of, 238 

Exhibitions, license for, 269 

Extents, how issued, 109-114 

Fees of Collectors, 92-99 

of justices, 274 

of impounding, 304 

of town-clerk, 327--330 

Fences, regulation of, 283 

fence-viewers chosen, 281 

if cattle impounded, 305 

Fines, recovery of, 270 

Fires, regulations for, 237—244 

Firewards, choice of, 28 

selectmen are, when, 28 

powers and duties, 237-244 

Floating Timber, 306-309 

Gates on Highways, 144 

at rail-road crossing, 149 

Governor, votes for, 55—57 

Guardians of Insane, 223—228 

of spendthrift, 223-228 



INDEX. 



341 



Guide-boards erected, 
Gun-powder, sale of, 



148 
262-264 



Health Officers, choice, 
selectman are, when, 
duties of, 264- 

Highways and bridges, 

powers of selectmen, 115- 
powers of court, 124, 

damages and costs, 125- 
discontinuance of, 
repair of, in towns, 129- 
making, not in town, 136, 
repair, not in town, 136, 
liability of towns, 
injuries to, 
travellers' rights in 
bridge by-laws, 
rail-road crossings, 
encumbrances in, 
encroachments on, 

Hog-reeves, choice of, 

Hoops, culling of, 

Houses of Correction, 
jail used as such, 



138- 
142- 



142- 
142- 



28 
28 
269 
115 
124 
125 
127 
127 
136 
137 
137 
141 
147 
148 
148 
149 
147 
147 
28 
321 
248 
271 



Insane, who are, 81, 224 

how taxed, 74—84 

guardians for, 223-2<;8 

paupers, support, 233-236 

asylum for, 234-236 

Invoice, how taken, 81-83 

form of, 334-336 

Jurors, drawing of, 313 

Lines perambulated, 37 

List of Voters, 49-55 

of rateable polls, 52-55 

of taxes, 86 

non-resident tax, 96 

Lost Goods regulated, 309 

Lumber, survey of, 321 

Majority, how determined, 51 

of officers, what is, 32 

Marriage, record of, 329, 330 

Measures, standard, 323 

sealers of, duties, 323 

Meetings, how warned, 17—24 

for elections, 55,57,59,61,63,64 

records of, form, 331 

Militia, duty as to, 318 

Mills, repair of 275 



Moderator, choice of, 25 

powers of, 25, 26 

duty in elections, 51-53 

Non-resident Taxes, 96-104 

Nuisances, 264-269 

Oaths of Office, 34-36 

Officers, town, choice of, 27 

vacancy, how filled, 28 

majority may act, 32 

police, powers, 251 

duties, 270 

Overseers of the Poor, 28 

selectmen are, when, 28 

duties of, see Paupers. 

Parishes are corporations, 13 

have powers of towns, 14 

Paupers, settlement of, 185—197 
money raised for, 14 

support and disposal 

of, 197-210 

insane supported, 233-236 
bastards, 214-223 



giving liquor to, 
buying property of, 
not allowed to vote, 


246 
246 


46 


Perambulation of Lines, 


37 


Plank, survey of, 


321 


Police regulations, 


244-248 


officers, 


251-255 


disorderly persons, 


248, 250 


general provisions, 


270-274 


Polls, list of made, 


52-55 


who are rateable, 


63-67 


Pounds to be built, 


303 


keeper of, chosen, 


28 


regulation of, 


295 


Proprietary Records, 


40 


Rail-Roads, tax on, 


74,75 


crossings guarded, 


149 


fences on, 


293 


Records, proprietary, 


40-42 


of elections, 


27-33 


of oaths of office, 


34-36 


in classed towns, 


65 


amendment of, 


69 


if false, penalty, 


70 


in special cases, 


327, 337 


form of, 


331 


Religious Meetings, 


259-261 



Representatives in Congress, 57 



342 



INDEX. 



Representatives to the General 
Court, choice of, 63--69 

Residents, taxes of, 90 

Return of Votes, 55,57,59,61,63,66 
blanks for, 71 

amendment of, 69 

Retailers' Licenses, 255-259 

Roads, see Highways. 

School-houses built, 166 

money for, raised, 14 

Schools, 151--184 

money for, raised, 14 

districts regulated, 151-158 
district meetings, 158-165 
houses provided, 166-17*2 
money and taxes, 173—176 
regulation of, 176-181 

in Portsmouth, 181-184 

Sealers of Weights, &c, 28 

duties and fees of, 323 

Selectmen, choice of, 27 

majority may act, 18,27 

powers and duties of, 27-33 
oath of, 34-36 

duty as to check list, 49-55 
to lay out roads, 115-124 
repair of roads, 129-136 

school districts, 151-158 

to call school meet- 
ing, 158-165 
to assess school tax, 166-176 
to warn town meet- 
ings, 18--21 
to fill vacancies, 27-33 
to tax stud horse, 79 
to take invoice, 81-83 
to appraise taxable 

property, 83, 84 

to assess taxes, 85-89 

to abate taxes, 89 

extents against or 

by, 109-114 

to make taxes, mode, 334 

to prosecute offences, 270 

may remit penalties, 15,271 

duty as to paupers, 197 

« « " bastards, 220 

" « " spendthrifts, 226 

« » « the insane, 223,233 

to appoint engine men, 240 

to appoint weighers, 324 

to provide standards, 323 

to perambulate lines, 37 



Selectmen, duty as to mills, 275 
jurors, 313 

militia, 318 

weights, &c, 321 
shows, 269 

nuisances, 264 

gun-powder, 262 

Sunday, 260 

taverners, &c, 255 
the police, 251 

Senators, votes for, 55—57 

Sheep, how taxed, 74, 77, 79 

impounding of 295 

going at large, 306 

stray, what are, 310 

mark or brand of, 327 

Shingles, survey of, 321 

Shows, license for, 269-270 

Sign-boards, 245, 252 

Slaughter Houses, 267 

Small Pox, 268 

Spendthrifts, guardian for, 223 
giving liquor to, 246 

Surveyors of Highways, choice, 28 
duties of, 129-136 

liability of, 138-141 

Staves, culling of, 321 

Steelyards sealed, 323 

Strays, regulation of, 309 

Sunday, regulation of, 259 

Superintending School Com- 
mittee, choice of, 28 
powers and duties of, 176 
Surveyors of Highways, choice, 28 
duties of, 129-136 
liability of, 138-141 
Surveyors of Lumber, choice, 28 
duties and fees of, 321 

Taxes Town, how raised, 14 

what are legal, 15—17 

on polls, 73 

on what property, 74, 75 
where assessed, &c, 76-80 
to whom assessed, 76—80 
how made, 85-89 

abatement of, 89 

discount of, 89 

of residents, 90, 337 

of nonresidents, 96 

state and county, 104 

general provisions, 105—109 
to repair highways, 129—136 
for road not in any town, 136 



INDEX. 



343 



Taxes, 

for schools, 172-176 

for school houses, 166-172 
mode of making, 334 

Taverncrs' Licenses, 255—259 

Timber, survey of, 321 

floating, 306 

Town-Clerk, choice of, 27-29 

oath of, 34-36 

duties of, 27-33 

fees of, 32,330 

to record oaths, 34-36 

to return votes,55 ,57,59,61, 63 

in classed town, 64-69 

actions against, 69, 70 

to amend returns, 69 

to draw jurors, 313 

to record mortgages, 327 

contracts, 328 

births, &c, 329 

marriages, 329 

transfers, 329 

to file attachments, 328 

forms for, 330 

record of town meeting, 331 

record, effect of, 337 

Town Meeting, how warned, 18 
warrant for, what in 14, 18 
when to be holden, 17 

justice may warn, 18, 19 
not warning, penalty, 19 
form of warrant, 20-24 

form of return, 19-22 

government of, 25-26 

adjournment of, 26 

lines perambulated, 37 

record of, form, 331 



Town Officers, choice, 27— 33 

to hold office, how long, 28 
vacancy, how filled, 28 

Towns, powers of, 13—17 

are corporations, 13 

may raise money, 14-16 
may make by-laws, 14 

meetings in, 14 

acts, when legal, 15—17 

division of, 15 

land conveyed by, 15 

roads in, see Higfaca.ys. 

Treasurer of Town, choice, 28 
selectmen are, when, 28 

selectmen to appoint, 29 

extents by, 109-114 

Unincorporated Places, 15 

highways in, 136, 137 

Vacancy in Town Offices, 28-30 

appointment, form of, 30 

what is a, 28 

Voters, who are legal, 45-49 

rights at meetings, 25, 26 

list of, 49-55 

illegal punished, 52-55 

Watchmen in Towns, 251-255 
Weighers of Cattle, 324 

Weights, standard, 323 

sealers of, 323 

by decimal hundred, 324 
Wolves, bounty on, 325 



Wood, measurers of, 
how measured, 



28, 322 
322 



